Meeting Boumediene's Challenge: The Emergence of an Effective Habeas Jurisprudence and Obsolescence of New Detention Legislation

40 Pages Posted: 22 Apr 2010 Last revised: 14 Dec 2010

Date Written: November 2010


The Supreme Court's decision in Boumediene v. Bush gave suspected terrorists at Guantánamo Bay access to a system in which federal judges in Washington, D.C. adjudicate the legality of their detention. While many, perhaps most, legal commentators praise Boumediene as a victory for individual rights, critics argue that the habeas process raises grave concerns about the maintenance of national security. Others worry that the paucity of clear standards may disadvantage detainees. Accordingly, some legislators, judges, and scholars have called for Congress to pass new detention legislation to provide guidance to the courts. After more than two years of district court wrangling with the implications of Boumediene, these criticisms need not be assessed in the abstract. This Note comprehensively reviews the habeas cases decided since Boumediene with a view to assessing these arguments and the ultimate wisdom of passing new detention legislation.

The story is complex. In the first eighteen months of litigation, murky Supreme Court precedent gave rise to significant differences in the standards employed among district court judges adjudicating habeas cases. That state of affairs benefited neither detainees nor the government, and strongly militated in favor of further guidance from Congress. But the pragmatic case for new detention legislation will no longer write. The D.C. Circuit has stepped in to answer many of the tough questions that plagued the early months of habeas litigation and arguably threatened the equal application of law; detainees are increasingly held to the same standard in every federal courtroom. Moreover, the D.C. Circuit has proven to be highly protective of national security prerogatives; the standards emerging from that court almost uniformly favor the government, and thus undermine the key motivation for Congress to pass new detention legislation-national security concerns.

In short, more than two years after the Supreme Court handed the reins of executive detention to federal judges in Washington, D.C., it is increasingly clear that the habeas process effectively balances U.S. national security and detainee liberty concerns. Through a critical examination of how the jurisprudence has unfolded, this Note tells the story of how and why habeas works. It concludes that new detention legislation would be unnecessary and possibly counterproductive; rather, the most prudent approach is to allow the D.C. Circuit to continue to resolve disagreements among lower court judges as they arise.

Keywords: Guantanamo, habeas corpus, D.C. District Court, Obama, Bush

JEL Classification: K40, K33

Suggested Citation

Nesbitt, Nathaniel H., Meeting Boumediene's Challenge: The Emergence of an Effective Habeas Jurisprudence and Obsolescence of New Detention Legislation (November 2010). Minnesota Law Review, Vol. 95, No. 1, 2010. Available at SSRN:

Nathaniel H. Nesbitt (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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