This month marks the five-year anniversary of Boumediene v.
Bush, the Supreme Court decision that upheld the Guantanamo
detainees' constitutional right to habeas corpus—a writ requiring
the government to justify a person's imprisonment in a court of
law. The ruling offered a pointed rejoinder to the abuses committed
in the name of the war on terror. "Security subsists, too, in
fidelity to freedom's first principles," Justice Anthony M. Kennedy
wrote. "Chief among these are freedom from arbitrary and unlawful
restraint and the personal liberty that is secured by adherence to
the separation of powers."
The five past years, however, have called Boumediene's significance into question. Relatively few Guantanamo detainees have been released as a result of court orders issued in response to habeas petitions. Habeas, moreover, has failed to dislodge the underlying system of prolonged indefinite detention at Guantanamo; judges have largely endorsed the idea of holding terrorism suspects as wartime captives. Rather than checking the exercise of state power, the availability of habeas corpus has arguably helped legitimize it.
http://reason.com/archives/2013/06/18/the-paradox-of-habeas-corpus
The five past years, however, have called Boumediene's significance into question. Relatively few Guantanamo detainees have been released as a result of court orders issued in response to habeas petitions. Habeas, moreover, has failed to dislodge the underlying system of prolonged indefinite detention at Guantanamo; judges have largely endorsed the idea of holding terrorism suspects as wartime captives. Rather than checking the exercise of state power, the availability of habeas corpus has arguably helped legitimize it.
http://reason.com/archives/2013/06/18/the-paradox-of-habeas-corpus
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