A recent New York Times editorial accused the D.C. Circuit of flouting the Supreme Court’s decision in Boumediene v. Bush by barring habeas relief for Guantanamo Bay detainees.  Legal scholars are now weighing in on that controversial issue.

In Boumediene, the Court held that detainees are constitutionally entitled to pursue habeas relief in federal courts, but it gave almost no guidance regarding the procedural, evidentiary, and substantive rules that should govern that process.  The burden of developing those rules has fallen squarely on the federal courts in Washington, D.C., which are the sole forum for these claims.  The D.C. Circuit’s post-Boumediene jurisprudence has its critics, as well as its defenders.  By far the most controversial critique is that the lower court is actively subverting the Supreme Court’s Boumediene decision by creating needless obstacles to habeas relief.

Professor Stephen Vladeck, a colleague at American University who has devoted his career to studying this litigation, has delved into the debate in an essay to be published in the Seton Hall Law Review.   The essay engages in a close analysis of the D.C. Circuit’s post-Boumediene case law to determine whether that court merits the criticism it has received from some quarters.  Although Vladeck disagrees with the claim that D.C. Circuit judges are engaged in a collective effort to defy the Supreme Court, he concludes that some jurists on that court have demonstrated “hostility to the Supreme Court’s jurisprudence.”

Benjamin Wittes, Robert Chesney, and Larkin Reynolds shed further light on these questions in their recent Brookings publication entitled The Emerging Law of DetentionThe Guantanamo Habeas Cases as Lawmaking 2.0. They point out that whatever one thinks of the D.C. Circuit’s approach, we would be better off if legislators, rather than judges, set U.S. habeas policy.

Both of these publications are a terrific resource for the reader who wants to understand how Boumediene is being applied in dozens of habeas cases making their way through the lower courts.

Posted in Boumediene/Al-Odah v. Bush, Academic Round-up

Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (May. 18, 2011, 1:58 PM), http://www.scotusblog.com/2011/05/academic-round-up-70/