Wartime Detention and the Extraterritorial Habeas Corpus Doctrine: Refining the Boumediene Framework in Light of its Goals and Failures
In Boumediene v. Bush, the Supreme Court held that the right to the writ of habeas corpus extended to noncitizen detainees captured abroad and detained at the American naval base in Guantánamo Bay, Cuba. Although Boumediene extended habeas corpus to Guantánamo and formulated a practical extraterritorial habeas corpus framework, the decision may have been a limited victory for civil rights advocates, as it did not resolve the question of the writ’s reach to any other American detention facilities located abroad, including the Bagram Theater Internment Facility in Afghanistan. In Al Maqaleh v. Gates, the D.C. District Court concluded that the petitioners detained at Bagram, like those at Guantánamo, had the right to petition for the writ of habeas corpus, but the D.C. Circuit reversed the lower court on appeal. The D.C. District and Circuit courts came to different conclusions because they took drastically different approaches to the Boumediene framework. This Note argues that the district court came to the right conclusion because its analysis was more faithful to Boumediene, it was more conscious of Boumediene’s separation-of-powers concerns, and, like the Supreme Court, it was appropriately receptive to the possibility that the Executive was attempting to “switch off” the Constitution by strategically detaining suspected enemy combatants in a location unlikely to receive judicial review. Furthermore, the fact that the district and circuit courts were unable to apply the framework consistently suggests that the Boumediene analysis may require refinement or clarification. This paper attempts to provide that.