What Good is Habeas?
University of Minnesota Law School, Constitutional Commentary, Forthcoming
48 Pages Posted: 27 Apr 2010 Last revised: 21 Sep 2010
Date Written: April 27, 2010
This essay examines empirically the effect of the Supreme Court’s 2008 judgment in Boumediene v. Bush, which held that detainees at the Guantánamo Naval Base in Cuba had a right to invoke federal court habeas jurisdiction. Boumediene marked a sharp temporal break because it introduced a new regime of constitutionally mandated habeas jurisdiction for non-citizens detained as “enemy combatants” at Guantánamo. The Boumediene Court envisaged habeas jurisdiction as serving a twofold purpose. First, it claimed habeas vindicates physical liberty interests in line with a longstanding historical understanding of the Writ. Second, the Court viewed habeas as a mechanism to generate or preserve legal boundaries on executive discretion. This essay gathers empirical evidence of the opinion’s effect up to January 2010 to determine whether these goals were fulfilled. While the data is in many respects ambiguous, it strongly suggests the effect of Boumediene on detention policy was not as significant as many believe. For example, less than four percent of releases from the Cuban base have followed a judicial order of release. Even in those cases, it is unclear if judicial action or something else caused release. Because the effects of habeas jurisdiction have been uncertain and perhaps marginal, effusive praise or blame of the Court’s 2008 decision is premature.
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