Do Boumediene Rights Expire?

161 U. PA. L. Rev. Pennumbra 20 (2012)

Fordham Law Legal Studies Research Paper No. 2166103

19 Pages Posted: 24 Oct 2012 Last revised: 8 Mar 2016

See all articles by Andrew Kent

Andrew Kent

Fordham University School of Law

Date Written: October 23, 2012


In 2008, Guantanamo detainees won a landmark victory in Boumediene v. Bush, which held that the Congress and the President could not prevent the detainees from accessing the courts to seek release via habeas corpus. The Court decided that persons claiming to be innocent civilians deserved a day in court, even though they were noncitizens held by the U.S. military as enemy combatants on foreign territory. The Court applied a fact-specific test that granted habeas rights to noncitizens outside the United States only when a balance of factors — including citizenship, enemy status, the nature of status review procedures, the military and diplomatic situation in the territory of detention, and other practical equities — demanded it. Now, several years later, dozens of detainees have had that day in court and have lost; they have been found to be enemy fighters who can lawfully be detained for the duration of the relevant conflict. Given this new status — no longer presumed innocents but now judicially-confirmed enemy fighters — and the new way that status was determined — habeas corpus in federal courts — does application of the Boumediene test today give them a continued constitutional right to file additional habeas or other future legal claims? This essay raises and provides a framework for evaluating this critical question, a question which will only gain importance over time as the war in Afghanistan winds down and the conflict with Al Qaeda, the Taliban and affiliated groups continues to evolve, prompting detainees to raise new factual and legal challenges to their ongoing detention. In a recent filing, the executive branch signaled that for now it will not contest ongoing court access for the judicially-confirmed enemy fighters at Guantanamo, but this should not end the matter. If, as appears to be the case, Boumediene rights concern subject matter jurisdiction, courts will have a duty to raise the issue sua sponte and the executive will lack legal authority to waive the argument.

Professor Steve Vladeck responded to this essay, and my short reply can be found here:

Keywords: habeas, Guantanamo, Boumediene, court access, noncitizens, constitutional rights, extraterritoriality, extraterritorial, globalism, global constitution, detention, detainees

Suggested Citation

Kent, Andrew, Do Boumediene Rights Expire? (October 23, 2012). 161 U. PA. L. Rev. Pennumbra 20 (2012); Fordham Law Legal Studies Research Paper No. 2166103. Available at SSRN:

Andrew Kent (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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