This article examines the conception of the U.S. courts’ role vis-à-vis the political branches of government in a national emergency that underlies the recent case-law on the rights of the detainees held in Guantanamo Bay and in the U.S. These cases struck historic blows to the Bush Administration’s policies on terrorism—the latest of these blows being the Court’s 2008 decision in Boumediene v. Bush. It has been argued that these cases confirm a pattern in the U.S. Supreme Court’s approach to rights during war-time, namely to revert to procedural arguments rather than to develop a framework of substantive constitutional rights to evaluate conflicts between security and rights during times of crisis. We argue that this approach does not square with Boumediene. Instead, we offer an alternative analytical approach, whereby courts retain a supervisory role with regard to the content of such measures and their conformity with substantive constitutional guarantees. According to this approach, judicial duty in a national emergency is determined by the proper combination of considerations of both content and institutional design. We call this the “mixed approach” and we argue that it better accords with the Court’s decision in Boumediene.
Review of Constitutional Studies, 2010, Vol 15, Issue 1, p. 149-176