I am delighted to see the publication of David Jenkins, Anders Henriksen & Amanda Jacobsen (eds), The Long Decade: How 9/11 Has Changed the Law by Oxford University Press this week. This collection emanates from what was an extremely stimulating workshop at the University of Copenhagen some years ago, where the implications for law (in the United States but also more generally) were explored by a large group of us assembled for the task. My chapter in the collection is entitled ‘Guantánamo Bay, the Rise of Courts and the Revenge of Politics’, and the abstract is below. An earlier version can be downloaded on SSRN.
Although a core part of Barak Obama’s election platform, the closure of Guantánamo Bay has proven more difficult to bring about than anticipated. This difficulty has primarily emanated from the persistent opposition to closure found within the United States Congress and given practical effect through legislative measures that make closure difficult, if not impossible. Understanding this divergence between Executive policy and Congressional preferred outcomes in the national security arena requires us to ask a simple question, which lies at the core of this paper: is Congress acting in a purely political or a politically constitutionalist manner? In other words, is this merely a question of politics or is Congress using Guantánamo Bay as the site upon which to sketch its vision of the appropriate relationship between different organs of government? That question takes on an added level of resonance in the context of Guantánamo Bay because of the series of US Supreme Court cases making it clear that the detention centre there is subject to law and, more specifically, to constitutional and constitutionalist limits. In this short essay, I address this question and argue that, rather than communicating a grand constitutional message, Congressional obstructionism in this context is politics as usual and should be understood as such.