Bagram, Boumediene, and Limited Government

49 Pages Posted: 10 Aug 2010 Last revised: 17 Dec 2011

See all articles by Robert Knowles

Robert Knowles

University of Baltimore School of Law

Marc D. Falkoff

Northern Illinois University - College of Law

Date Written: August 10, 2010

Abstract

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.

Suggested Citation

Knowles, Robert and Falkoff, Marc D., Bagram, Boumediene, and Limited Government (August 10, 2010). DePaul Law Review, Vol. 59, p. 851, 2010; Thomas Jefferson School of Law Research Paper No. 1656595. Available at SSRN: https://ssrn.com/abstract=1656595

Robert Knowles (Contact Author)

University of Baltimore School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

HOME PAGE: http://law.ubalt.edu/faculty/profiles/knowles.cfm

Marc D. Falkoff

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

HOME PAGE: http://www.niu.edu/law/about/directory/marc_falkoff.shtml

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