Who May Be Held - Military Detention through the Habeas Lens
![handle is hein.journals/bclr52 and id is 775 raw text is:
WHO MAY BE HELD? MITARY
DETENTION THROUGH THE HABEAS LENS
ROBERT M. CHESNEY*
Abstract: We lack consensus regarding who lawfully may be held in mili-
tary custody in the contexts that matter most to U.S. national security to-
day-i.e., counterterrorism and counterinsurgency. More to the point,
federal judges lack consensus on this question. They have grappled with it
periodically since 2002, and for the past three years have dealt with it con-
tinually in connection with the flood of habeas corpus litigation arising
out of Guantanamo in the aftermath of the Supreme Court's 2008 deci-
sion in Bounediene v. Bush. Unfortunately, the resulting detention juris-
prudence is shot through with disagreement on points large and small,
leaving the precise boundaries of the government's detention authority
unclear. The aim of this Article is to flesh out and contextualize these dis-
agreements, and to locate them in relation to larger trends and debates.
INTRODUCTION
Who lawfully may be held in military custody without criminal
charge? It seems a simple question, and in some settings it is.1 But in
the settings that matter most at the moment-counterterrorism and
counterinsurgency-it is not simple at all. The very metrics of legality
are disputed in these contexts, with sharp disagreement regarding
which bodies of law are relevant and what, if anything, each actually
says about the scope of the government's authority to detain (the de-
tention-scope issue).2
This problem has been with us for some time. It has lurked in the
background of U.S. detention operations in Afghanistan since 20013
* @ 2011, Robert M. Chesney, Charles I. Francis Professor in Law, University of Texas
School of Law. I am grateful to the organizers and participants at the Naval War College's
annual law of war conference for their comments and criticisms, to the Office of the Gen-
eral Counsel of the Department of Defense for the opportunity to present this work in
progress, and to Daniel Jackson for outstanding research assistance.
I See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War art. 4(A),
Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW].
2 See infra notes 350-586 and accompanying text.
3 See, e.g., 1 CTR. FOR LAw & MILITARY OPERATIONs, U.S. ARMy, LEGAL LESSONS
LEARNED FROM AFGHANISTAN AND IRAQ 53 (2004) (describing uncertainty regarding the
status of the initial detainees in Afghanistan in late 2001).
769](ViewImageLocal?handle=hein.journals/bclr52&div=26&collection=journals&method=preview&ext=.png&size=3)
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Who May Be Held - Military Detention through the Habeas Lens
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