Justice Stevens, Habeas Jurisdiction, and the War on Terror

25 Pages Posted: 17 May 2009 Last revised: 18 May 2009

See all articles by Daniel A. Farber

Daniel A. Farber

University of California, Berkeley - School of Law


The Bush Administration chose Guantanamo as a detention site in the belief that the military base was immune from federal habeas jurisdiction, leading to a protracted dispute between the Executive Branch, the Supreme Court, and Congress. Justice Stevens played an important role in this struggle over federal jurisdiction, writing two critical majority opinions and an important dissent about habeas jurisdiction. His two majority opinions were countered by fervent dissents by Justice Scalia. Examining these clashes is well worthwhile because of the importance of the legal issues, but also because of the light they may shed on the different analytic approaches of these two influential Justices. This paper gives particular attention to a seemingly arcane and technical battle over the retroactivity of jurisdiction-stripping statutes. Not unusually, where Justice Scalia saw a bright-line rule, which he accused the Court of wantonly trammeling, Justice Stevens instead saw a more pragmatic standard. A close examination of precedent supports Justice Stevens's view and rebuts Justice Scalia's accusation of lawlessness. Rather, it was Justice Stevens's majority opinion that was the more faithful to the rule of law.

Suggested Citation

Farber, Daniel A., Justice Stevens, Habeas Jurisdiction, and the War on Terror. UC Berkeley Public Law Research Paper No. 1405538. Available at SSRN: https://ssrn.com/abstract=1405538 or http://dx.doi.org/10.2139/ssrn.1405538

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
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Berkeley, CA 94720-7200
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