« Asking for the World | Main | How Special is Special? »

Wednesday, May 11, 2011

The D.C. Circuit After Boumediene

Speaking of self-promotion... Those who have been following the Guantanamo litigation and/or the ongoing debate over the "new AUMF" language in the NDAA are probably well-acquanited with the debate over whether the D.C. Circuit in its post-Boumediene jurisprudence has attempted to undermine the Supreme Court's June 2008 decision, which held that the Guantanamo detainees are entitled to the full protections of the Suspension Clause. 

For those who would like to read more, or who could use (what I hope is) a useful capsule summary of the jurisprudence to date, I have a new paper on SSRN (part of a sympoisum for the Seton Hall Law Review) that analyzes the bulk of the D.C. Circuit's post-Boumediene Guantanamo case law in light of this charge. Not to ruin the punch-line, but the essay concludes that the hostility to Boumediene (and, as significantly, Hamdi) can be ascribed to no more than four of the D.C. Circuit's judges. The rest of the Court of Appeals has generally hewed to a more moderate line, and has even rebuffed their outlier colleagues in a few significant cases. That's not to commend the results in all of the court's decisions, many of which I find quite disturbing (some deeply so). Rather, it's to suggest that, for the most part, the core of the D.C. Circuit is acting consistently with what little guidance the Supreme Court has offered--a point we would do well to keep in mind in the context of the very live debate over whether statutory reform of the AUMF is necessary...

Posted by Steve Vladeck on May 11, 2011 at 10:06 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef014e885d94a2970d

Listed below are links to weblogs that reference The D.C. Circuit After Boumediene:

Comments

The comments to this entry are closed.