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110 Colum. L. Rev. 537 (2010)
Habeas Corpus Suspension Clause after Boumediene v. Bush

handle is hein.journals/clr110 and id is 551 raw text is: THE HABEAS CORPUS SUSPENSION CLAUSE AFTER BOUMEDIENE V. BUSH Gerald L. Neuman* In the course of vindicating the right to habeas corpus for military pris- oners at Guantanamo Bay Naval Base, the Supreme Court had occasion to resolve a series of previously open questions about the meaning of the Constitution's Habeas Corpus Suspension Clause. In this Essay, Professor Neuman examines the implications of the Court's interpretation for habeas corpus law more generally, in civil and criminal contexts within the United States. The Suspension Clause guarantees a permanent minimum content for the judicial remedy against unlawful detention of either citizens or aliens. The constitutionally necessary scope of review is determined partly by histori- cal inquiry, and partly by an instrumental balancing test. Stricter stan- dards apply to review of executive detention, but the Clause may also require some check on judicially ordered detention. The Court's analysis further sug- gests that the Suspension Clause is best understood today as affirmatively mandating a federal remedy, and not merely as protecting state remedies from federal interference. This Essay explores the consequences of this account for recent controversies over judicial power to provide effective review of decisions removing aliens from the United States, and thereby illustrates the uncertain operation of the Court's new balancing approach. INTRODUCTION ..................................................... 538 I. WHAT THE SUPREME COURT DID IN BOUMEDIENE........... 539 A. Boumediene's Confirmations of St. Cyr ................. 540 1. The Suspension Clause Permanently Guarantees a Certain Minimum Content of Judicial Inquiry into the Lawfulness of Detention (Except when the Privilege of the Writ Is Properly Suspended) ...... 541 2. The Minimum Content Guaranteed by the Suspension Clause Includes at Least Those Powers Exercised by Habeas Courts in 1789 .............. 543 3. The Suspension Clause Protects Aliens as Well as C itizens .......................................... 545 4. The Suspension Clause Requires More Intense Review of Detention by Executive Order than of Detention After Judicial Conviction, Including Review of Erroneous Interpretation or Application of Law ........................................... 546 B. Boumediene's Innovations ............................. 548 * J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School. All rights reserved. (I should disclose that I wrote an amicus brief in the Boumediene case, on behalf of Professors of Constitutional Law and Federal Jurisdiction.) 537

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