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Political Path of Detention Policy

NCJ Number
American Criminal Law Review Volume: 48 Issue: 4 Dated: Fall 2011 Pages: 1531-1545
Aziz Z. Huq
Date Published
15 pages
This essay first focuses on the legal theory of the separation of powers, and then provides a historical case study to show how that theory's predictions are not supported in the observed outcomes of post-9/11 detention policy for individuals suspected of terrorism.
Although the theory of the separation of powers envisions that each branch of government will act conscientiously within the parameters of its constitutional functions in the enactment (legislative branch) and enforcement (executive branch) of laws, this essay argues that all branches of government tended to test and reflect the political "winds" in detention policy, so as to achieve and retain public support. The judicial branch also responded to the political "winds" as perceived by the legislative and executive branches by refusing to mount challenges and checks on the consensual policies of the executive and legislative branches. Thus, all branches were under pressure to behave politically in matters of national security, specifically the mass jailing of terrorist suspects in Guantanamo. The Bush administration responded to the public's anger toward and fear of terrorism by refusing to follow the tradition of "battlefield" hearings to screen suspects for detention. Instead, anyone believed to be hostile toward the United States and its military occupation of Afghanistan was shipped to Guantanamo as a terrorist suspect. This convinced the public that "bad" people were being incapacitated in detention. After making this political point in the public's mind, over time the Bush administration would release more than three-quarters of Guantanamo's detainees. The Obama administration, despite campaign promises, retained Guantanamo's detention status and limited releases, supported by congressional legislation. Thus, this essay argues that politics tends to mold a consensus among executive and legislative branches, unfettered by the judicial branch, in molding detention policy toward terrorist suspects. 80 notes