Executive Detention, Boumediene, and the New Common Law of Habeas

Abstract

In Boumediene v. Bush, the Supreme Court issued yet another sharp rebuke of the Bush Administration's wartime detention practices. In ruling that the protections of the Suspension Clause reach extraterritorially to Guantanamo (and perhaps beyond) and striking down the jurisdiction-stripping provision of the Military Commissions Act of 2006, the Court went significantly farther than had the triad of prior enemy combatant cases - Hamdi v. Rumsfeld, Rasul v. Bush and Hamdan v. Rumsfeld. Indeed, for the first time in its history, the Court invalidated the collaborative efforts of the political branches during wartime. In so doing, Boumediene elevated the judiciary to a preeminent role in reviewing wartime detention operations, assuming exclusive jurisdiction and control over habeas cases brought by 200-plus Guantanamo detainees.

In effect, Boumediene issued a largely unlimited invitation to the lower courts to create a whole new corpus of habeas law in the context of military detention - one that has largely remained undeveloped since Reconstruction. This article provides a normative justification for the Court's role and bridges the gap between the theoretical basis undergirding the decision and several concrete questions the district courts must consider on remand.

Specifically, after situating Boumediene as a landmark separation-of-powers ruling, this article addresses now-ripe substantive law questions the Court left open for case-by-case adjudication. First, the article considers whether the protections of the Suspension Clause apply to what some are calling "Obama's Guantanamo" - the large U.S. detention center in Bagram, Afghanistan. Second, it evaluates the substantive limitations from the law of war which may now constrain what the executive has so far asserted is nearly unlimited authority to detain enemy combatants in the "global war on terrorism." In addition, evaluates the procedural and evidentiary framework that has begun to govern the factual development in up to hundreds of largely unprecedented de novo habeas hearings that are occurring in the district courts, and defends the process of common law decision-making in the executive detention context. This article thus seeks to make a substantial contribution to what will surely be an ongoing discussion about this new common law of habeas.

Keywords: Boumediene, habeas corpus, Guantanamo, Bagram, war on terror, enemy combatants, law of war