Given an Inch, the Detainee Effort to Take a Mile: The Detainee Legislation and the Dangers of the "Litigation Weapon in Unrestrained Enemy Hands"

Abstract

This Comment addresses one of the most fundamental questions in the debate over detainee rights: whether the DTA/MCA review process is a proper exercise of congressional authority to determine the habeas rights of detainees in light of the habeas statute, the Constitution, and the Geneva Convention. This Comment will argue that the statutory review process was a proper exercise of congressional authority and will address the relevant issues as follows.

Part II will provide a general background of the writ and examine its historical origins, its incorporation into the Constitution, the operation of the writ in federal court, and the Court's habeas jurisprudence prior to the war on terror. Part III will detail the system of executive detention against which the writ has been asserted, focusing on the Naval Base at Guantanamo Bay, Cuba. Part IV will analyze judicial and congressional responses to legal challenges brought by citizen and noncitizen detainees against that system of executive detention. Part V will discuss the unresolved questions regarding the nature and breadth of detainee legal challenges. Part VI will evaluate the review process provided under the Detainee Treatment Act of 2005 and Military Commissions of 2006 in light of habeas obligations under domestic and international law. Part VII will consider the implications of the legal debate on the larger war effort. Part VIII will conclude the Comment, and Part IX discusses the Boumediene decision.