Boumediene V Bush PDF Download

This Comment examines the D.C. Circuit's decision in Boumediene v. Bush, which upheld the Military Commissions Act of 2006 provisions that deny habeas corpus review for war on terror detainees held at Guantanamo Bay. While the U.S. Supreme Court was one vote short of granting certiorari, the issues in Boumediene will likely be reviewed by the Court at some point as Justices Stevens and Kennedy voted to deny certiorari simply because the detainees had not exhausted all available remedies. As such, this Comment (1) responds to the arguments advanced by Judge Rogers's dissent and (2) structures the Suspension Clause questions in a different manner that tracks the text of the Constitution, while narrowing the focus of each individual question. In concluding that the majority correctly upheld the MCA's jurisdiction stripping of the detainees' habeas claims, this Comment presents at least three novel arguments. First, Judge Rogers's attempt to distinguish Johnson v. Eisentrager proves too much because Eisentrager confirms that noncitizens detained outside the United States did not have access to the writ of habeas corpus as it existed in 1789. Second, the correct baseline for determining whether the MCA provides an adequate and effective alternative remedy should be cases regarding military tribunals over executive detention - not anachronistic cases dealing with collateral attack of criminal convictions. Third, had the D.C. Circuit considered whether suspension of habeas corpus is a political question, it should not have adopted Professor Amanda Tyler's analysis because Tyler overlooks the fact that the Supreme Court has never conducted an independent war powers analysis when in Justice Jackson's Youngstown category one (President acting in accordance with a congressional act).