of Judicial Cosmopolitanism
Eric A. Posner1
In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo Bay have the constitutional privilege of habeas corpus and that the review procedures established by the Detainee Treatment Act do not provide an adequate substitute. Justice Anthony Kennedy rests his majority opinion on what he calls a theory of separation of powers, but on inspection it becomes clear that the real basis of the opinion lies elsewhere. The holding turns on an implicit theory about the rights of noncitizens, a theory that is prior to the conception of separation of powers and is essentially about who belongs to the political community or demos. Justice Kennedy's theory is a cosmopolitan theory.
Shortly after 9/11, Congress passed the Authorization for Use of Military Force, which authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”2 The Bush administration claimed that the AUMF authorized the military to detain and hold “enemy combatants,” a position that was accepted by the Supreme Court in Hamdi v. Rumsfeld.3 But the Court also held that the detainees were entitled to a procedure that allows them to contest their status as
1 Kirkland & Ellis Professor, University of Chicago Law School. Many thanks to
Scott Anderson, Curt Bradley, Mary Anne Case, Adam Cox, Mark Heyrman, Jens
Ludwig, Madhavi Sunder, Adrian Vermeule, and participants at a workshop at the
University of Chicago, for helpful comments, and Ben Burry for research assistance.
2 Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001).
3 542 U.S. 507, 509 (2004).