Calling the Government to Account: Habeas Corpus after Boumediene

63 Pages Posted: 16 Dec 2011  

Jonathan Hafetz

Seton Hall Law School

Date Written: December 14, 2011

Abstract

In June 2008, the Supreme Court decided Boumediene v. Bush, holding that Guantanamo detainees have a right to habeas corpus under the Constitution's Suspension Clause. In the more than three years since Boumediene, lower federal courts in Washington D.C., have issued nearly eighty decisions addressing the merits of Guantanamo habeas cases. In the process, they have developed an emerging body of national security detention jurisprudence, with implications that transcend the Guantánamo habeas cases. This Article surveys this post-Boumediene jurisprudence and assesses its implications. Although it is too early to draw any definitive conclusions, the growing body of habeas decisions provides a window into Boumediene’s impact and the legacy of the post-9/11 enemy combatant decisions more generally. In particular, the Article describes the significance and limitations of what Boumediene described as a critical function of habeas: calling the government to account by requiring that it provide a lawful basis for a prisoner’s detention.

Keywords: Habeas Corpus, Boumediene, Guantanamo, Detention, Military Commissions, Constitution

Suggested Citation

Hafetz, Jonathan, Calling the Government to Account: Habeas Corpus after Boumediene (December 14, 2011). Available at SSRN: https://ssrn.com/abstract=1972542 or http://dx.doi.org/10.2139/ssrn.1972542

Jonathan Hafetz (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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