Habeas Corpus and Due Process

80 Pages Posted: 27 Feb 2012 Last revised: 1 Dec 2012

Brandon L. Garrett

Duke University School of Law

Date Written: November 20, 2012


The writ of habeas corpus and the right to due process have long been linked together, but their relationship has never been more unsettled or important. The U.S. detained hundreds of suspected terrorists who brought legal challenges using the writ. In the first of two landmark Supreme Court cases addressing those detentions, Hamdi v. Rumsfeld, the plurality chiefly relied on the Due Process Clause to explain what procedures must be followed. Most scholars assumed due process would govern the area. However, the due process path was not taken in Boumediene v. Bush, in which the Court held that the Suspension Clause itself extended habeas corpus process to noncitizen detainees at Guantánamo Bay. In fleshing out the required process, lower courts have misunderstood the Court’s command, borrowing from far-flung standards in post-conviction, administrative, criminal procedure, and immigration law, and generating vague and inadequate procedures for reviewing sensitive national security detentions. I argue Boumediene correctly located procedures in the Suspension Clause, not the Due Process Clause. Further, I argue history and practice supports the view that the Suspension Clause demands a flexible traditional habeas process. This view challenges the set of standards currently used in executive detention cases. This also has implications for domestic habeas; it could ground innocence claims in the Suspension Clause. More broadly, this explains commonalities in the structure of statutes and caselaw regulating habeas corpus across its array of applications to executive detention and post-conviction review. Habeas review now plays a far more central role in the complex regulation of detention than many would have predicted. This is because it does not, as often understood, depend on underlying due process rights - to the contrary, habeas inversely plays its most crucial role when prior process is lacking. Put simply, the Suspension Clause ensures that habeas corpus begins where due process ends.

Suggested Citation

Garrett, Brandon L., Habeas Corpus and Due Process (November 20, 2012). Cornell Law Review, Vol. 98, No. 1, 2012; Virginia Public Law and Legal Theory Research Paper No. 2012-14. Available at SSRN: https://ssrn.com/abstract=2008746

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

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