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"Litigation as an Enemy Military Tactic"

Now that the Supreme Court has ruled that habeas corpus extends to foreign nationals detained at Guantanamo Bay, Eugene Volokh thinks it possible that concerted litigation campaigns by captured detainees could become a method by which enemies carry on hostilities against the U.S. government. Read the whole thing (Jun. 28). Why might al-Qaeda or other forces at war with the United States find litigation tactically attractive? One motive would be to impede the actions of government (by, for example, making it necessary for U.S. combat personnel in the field to make themselves available for depositions). A further possible motive involves a risk which Volokh brushes on in passing, namely the disclosure of secret material. We know that al-Qaeda sent agents to major terrorism trials to take careful notes of the testimony there, and that the resulting trove of information did much to allow the organization to construct a model of how Western counterterrorism services do their work. To be sure, U.S. courts employ various safeguards (such as in camera examination of documents by judges) which help to prevent dissemination of sensitive material. Still, once the barrage of interrogatories and document demands is underway against the Pentagon and its contractors (characterized, of course, as pursued only for the purpose of determining whether detainees' rights have been violated), and the results shared by lawyers with each other and (where not prohibited) the press, it would be surprising if a quantity of militarily useful information did not make it onto the public record. A range of other views on yesterday's decisions: Jack Balkin, Steve Bainbridge, Dan Drezner, Larry Solum, Stuart Benjamin.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.