Boumediene v. Bush: The Supreme Court's War on Precedent Damages the War on Terror

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Hill, Mark D.
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2009
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INTRODUCTION|Prior to Boumediene v. Bush in 2008, the Supreme Court never conferred the constitutional right of habeas corpus to an alien enemy detained abroad while the United States was at war. To the contrary, in Johnson v. Eisentrager, the Supreme Court specifically refused to apply the writ of habeas corpus to enemy aliens detained abroad. The Supreme Court in Eisentrager I concluded that such noncitizens could not gain qualified access to the U.S. court system. Despite its precedent, the Supreme Court held in Boumediene I that the Suspension Clause of the Constitution ("Suspension Clause") fully applied at Guantanamo Bay, Cuba ("Guantanamo Bay"), meaning noncitizen enemy combatants detained at the military prison at Guantanamo Bay could challenge their detention using the writ of habeas corpus. Not surprisingly, the Boumediene I decision has received attention from both the popular press and from the academic community. |In Boumediene I, the United States Defense Department captured noncitizens fighting against the United States overseas. The United States Defense Department classified the noncitizen fighters as enemy combatants through Combatant Status Review Tribunals ("CSRT"). Thereafter, the United States detained the enemy combatants at an United States Naval base in Guantanamo Bay, a military base outside of the sovereignty of the United States. In Boumediene I, the Supreme Court rejected the notion that its decision in EisentragerI applied a formalistic test based on sovereignty in determining the reach...
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42 Creighton L. Rev. 447 (2008-2009)
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Creighton University School of Law
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