Bagram, Boumediene, and Limited Government
Thomas Jefferson School of Law
Marc D. Falkoff
Northern Illinois University College of Law
August 10, 2010
DePaul Law Review, Vol. 59, p. 851, 2010
Thomas Jefferson School of Law Research Paper No. 1656595
The United States’ prison at Bagram Airbase in Afghanistan is the latest front in the battle over the extraterritorial reach of the Constitution. Habeas litigation on behalf of Bagram detainees has begun establishing how the writ of habeas corpus extends beyond U.S. territory to active war zones, and it has begun to refine the limits of presidential power in the war on terror. This Article explains why, as the courts wrestle with these issues, their foremost task should be to determine whether the Constitution authorizes the U.S. government to suspend the protections of the writ, rather than to discover whether detainees abroad possess a “right” to judicial review of the legality of their detentions. More broadly, we suggest that the U.S. Supreme Court’s new multifactor balancing test for determining the extraterritorial reach of the writ (announced in June 2008 in Boumediene v. Bush1) must be understood as embodying a limited government approach, rather than a rights-based approach, to defining the global reach of the Constitution.
Number of Pages in PDF File: 49Accepted Paper Series
Date posted: August 10, 2010 ; Last revised: December 17, 2011
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