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Boumediene v. Bush and the Role of the Courts in the War on Terror: The Intersection of Hyperbole, Military Necessity, and Judicial Review


Geoffrey S. Corn


South Texas College of Law

October 18, 2008

New England Law Review, Forthcoming

Abstract:     
In its recent decision of Boumediene v. Bush, the Supreme Court invalidated the collective effort of the President and Congress to limit the ability of "enemy combatants" held by the United States to challenge the legality of their detention in Article III courts. While the majority opinion focused primarily on the scope of the constitutional habeas guarantee, it is impossible to ignore the reality that the issue that lay just below the surface was the legitimacy of subjecting individuals to "generational" detention based on an expansively applied definition of the term "enemy combatant." Although the Court had four years earlier held that preventive detention based on such a designation was conceptually justified as a "fundamental and accepted incident of war", it had also suggested that should the scope of that definition become disconnected from the customary concept of an enemy battlefield belligerent, this justification might erode. By providing Guantanamo detainees with the long demanded opportunity to obtain judicial review of the legality of their detention, the Court has set in motion a process that will almost inevitably force the government to defend the scope of the enemy combatant definition it has relied on to justify the preventive detention of individuals who do not fall into the traditional realm of a battlefield belligerent. In so doing, the Court has set in motion a process that will finally bring to a head the legitimacy of applying detention authority derived from the long established customary law of armed conflict in a context context characterized by the hyperbolic designation of a "Global War." Because the government will almost certainly now be forced to demonstrate how the scope of the enemy combatant definition relied on by the Combatant Status Review Tribunal's in Guantanamo remains consistent with the law of armed conflict itself, the Boumediene opinion is not a catastrophic blow to the government's authority to detain terrorists who participate in hostilities against the United States. Instead, it has provided the opportunity and impetus for the government to finally reconcile it's assertion of detention authority with the law upon which it purports to apply - the law of armed conflict.

Number of Pages in PDF File: 25

Keywords: Boumediene, Combatant Status Review Tribunal, Enemy Combatant, War on Terror, the Law of War, the Law of Armed Conflict, Habeas Corpus, Supreme Court

JEL Classification: K10, K33, K41

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Date posted: October 19, 2008 ; Last revised: October 21, 2008

Suggested Citation

Corn, Geoffrey S., Boumediene v. Bush and the Role of the Courts in the War on Terror: The Intersection of Hyperbole, Military Necessity, and Judicial Review (October 18, 2008). New England Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1286624

Contact Information

Geoffrey S. Corn (Contact Author)
South Texas College of Law ( email )
1303 San Jacinto Street
Houston, TX 77002
United States
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