Boumediene and Lawfare

Abstract

One reason that the Bush Administration persistently resisted giving Guantanamo Bay detainees access to courts and to lawyers was the belief that they would use such access to engage in "lawfare," or "the use of law as a weapon of warfare." Discovery of a purported al-Qaeda training manual in a safehouse in Great Britain reinforced this concern, particularly given the manual's exhortation to its readers, if captured, to make false claims of torture and to use attorneys to pass information to the outside world. Yet, the Supreme Court's decision in Boumediene v. Bush appears to discount the concern over lawfare by implying that the detainees are constitutionally entitled to representation by counsel. In this Essay prepared for the Allen Chair Symposium on "Detaining Suspected Terrorists: Past, Present, and Future," I discuss reasons to believe that lawfare -- as practiced by lawyers for detainees -- can be adequately controlled by existing tools available to the government: security clearance requirements for counsel, and monitoring of privileged conversations. These tools are not without controversy, and I do not mean to suggest that they should be used lightly, but their very intrusiveness makes them particularly effective at impeding lawfare. Thus, I conclude that it is unpersuasive to argue that Bouemdiene will endanger Americans by enabling detainees to engage in effective lawfare through the use of lawyers.

Keywords: Guantanamo, detainees, lawfare, security clearance requirement, monitoring priveleged communinations, Boumediene

JEL Classification: Z00