Academic journal article Suffolk University Law Review

Indefinite Detention after Boumediene: Judicial Trailblazing in Uncharted and Unfamiliar Territory

Academic journal article Suffolk University Law Review

Indefinite Detention after Boumediene: Judicial Trailblazing in Uncharted and Unfamiliar Territory

Article excerpt

"[A]s critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat." (1)

I. Introduction

The United States holds due process of law as one of its most cherished and revered constitutional protections. (2) The national reverence for due process, however, has not been evident over the past seven years during which hundreds of people have been detained without charges at Guantanamo Bay Naval Base (Guantanamo Bay) as threats to national security. (3) abdulrahim abdul razak al Ginco was a college student in the United arab emirates when he fled his strict Muslim father for Afghanistan in 2001. (4) After a brief association with the Taliban and/or Al Qaeda, Taliban soldiers brutally tortured Al Ginco until he falsely confessed to being a spy, and imprisoned him in the infamous Sarpusa prison in Kandahar. (5) When a reporter acquiesced to Al Ginco's pleadings and alerted the newly arrived U.S. forces to his presence, Al Ginco was not liberated, but rather sent to Guantanamo Bay as an enemy combatant. (6) Al Ginco spent the next seven years enduring sleep deprivation, stress positions, snarling dogs, and separation from his family, all while never formally charged with any crime. (7)

Hundreds of "unlawful enemy combatants"--those who the United States deems a threat to national security--have been, and continue to be, imprisoned at Guantanamo Bay. (8) American forces captured some detainees on the battlefields of Afghanistan or iraq, but many were simply plucked from their lives, often based on tenuous evidence of wrongdoing. (9) There has been enormous debate both at home and abroad about the legality of the United States's detention of these individuals, with critics claiming this practice runs afoul of due process, one of our nation's most fundamental protections. (10)

There are several key pieces of legislation the Bush Administration, and later the Obama Administration, have relied upon for legal justification of the indefinite detention of those they deem to be a threat to national security. (11) The Bush Administration relied, in large part, on the President's Article II powers as Commander-in-Chief, pursuant to the Authorization for Use of Military Force (AUMF), as well as the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), in authorizing detention. (12) The obama Administration has moved away from this legal justification for detention, and instead states detention is justified solely on the power the AUMF grants the President. (13) The AUMF is a broad grant of power given to the President in the wake of the terrorist attacks of September 11, 2001, authorizing the use of military force against "those responsible for the ... attacks launched against the United States." (14) Perhaps responding to intense debate regarding the proper definition of "unlawful enemy combatant," the Obama Administration abandoned the term as a basis for detention.15 After the Obama Administration dropped the term "unlawful enemy combatant" as a justification for detention, there were significant debates about whether the term was a useful framework outside the realm of detention justification. (16) Nevertheless, the power of the U.S. government to indefinitely detain was dealt its most severe blow when the Supreme Court ruled in Boumediene v. Bush (17) that detainees being held at Guantanamo Bay were entitled to challenge their detention by filing for the writ of habeas corpus in the federal courts. (18)

In the wake of Boumediene, there has been a flood of litigation in which detainees seek the writ of habeas corpus challenging their detention as unlawful. …

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