Guantanamo Litigation: District Court

Emerging Law of Detention 2.0--Updates

By Benjamin Wittes
Friday, April 13, 2012, 5:48 PM

Last year, Bobby, Larkin, and I released a paper entitled "The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking." The paper promised to be a kind of living document:

Rather than simply produce a new edition of the paper, one that would just as quickly become obsolete, we decided to adapt it into a more dynamic document—one that we can update in real time as the law of detention emerges further and to which we can add additional sections covering issues we ignored the first time around.

. . .

In some areas, the development [of the law] has been, and will continue to be, relatively rapid. In other areas, things change slowly. The goal is to provide, at all times, a reasonably up-to-date account of how the law of detention is changing and where it is heading on each of the bewildering array of questions on which individual judges and combinations of appellate judges are picking and choosing among the possible directions of the law.

We have now released updates to two of the chapters. Chapter 2, which deals with the burden of proof, and Chapter 5, which deals with evidentiary presumptions have both been rewritten to take account of recent case law development. An additional chapter will be updated shortly.

The updating of this paper has been done in collaboration with the Harvard Law School National Security Research Committee, a student practice organization that provides legal research services for academics and policymakers on a variety of national security law issues. The collaboration has taken place under the auspices of the Harvard Law School-Brookings Project on Law and Security. We are very grateful to all of the students who participated.