Drake Law Review
In Rasul v. Bush, the Supreme Court held that U.S. district courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. In this paper, I explore what has happened since the Rasul decision: most notably, the introduction of combatant status review tribunals as a response to Rasul and the challenges that have been filed thereto and adjudicated in the federal courts (Khalid, In re Guantanamo Detainee Cases); the charges brought against certain detainees by military commissions and challenges to these commissions filed in the federal district courts (e.g. Hamdan v. Rumsfeld); and the disaggregating of conventional and customary international law from the conduct of the war on terror. I argue that Guantanamo stands as a metaphor for a broader view that posits law as impairing instead of promoting national security interests. The resultant twilight of law extends well beyond Guantanamo to include detentions in Iraq and Afghanistan; renditions; attempts to minimize judicial review of decisions of the executive branch; and bold reinterpretations of the Geneva Conventions and Convention Against Torture. The paper ends by proposing a different model that, instead of viewing the crimping of law as necessary to promote national security interests, posits a synergy between respect for law and protection of national security.
Mark A. Drumbl, Guantanamo, Rasul, and the Twilight of Law, 53 Drake L. Rev. 897 (2005).