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Guantanamo and the New York Times's Latest Legal Fiction

1:38 PM, Mar 3, 2011 • By ADAM J. WHITE
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The New York Times's latest Guantanamo editorial has been rightly criticized for failing to grapple seriously with the problems created by the Supreme Court's 2008 decision in Boumediene v. Bush. In that case, the Supreme Court created a constitutional right for detainees to directly challenge their detentions in federal court by filing "habeas corpus" petitions. But the Times editorial completely misstates Boumediene's actual ruling.

Guantanamo and the New York Times's Latest Legal Fiction

The Times asserts that Boumediene gave detainees "the right to have a federal judge decide promptly whether their detention is illegal and, if so, order their release because the United States controls the place they are held." But Boumediene did no such thing. It certainly did not rule that any detainee whose detention is ruled illegal has a "right" to be released – in fact, it said the precise opposite: "release need not be the exclusive remedy and is not the appropriate one in every case in which the writ [of habeas corpus] is granted."

Boumediene created no "right" to release – let alone a right to be released into the United States, in violation of immigration laws and other federal enactments that bar detainees' entry.  The detainees' attempt to stretch Boumediene to achieve such a result was rejected in 2009 by the U.S. Court of Appeals for the D.C. Circuit in Kiyemba v. Obama, the case that is the subject of the Times's editorial.  The D.C. Circuit didn't "subvert" the Supreme Court's Boumediene decision – as the Times accuses.  Rather, it accepted Boumediene's rule – that the federal courts have jurisdiction to hear these habeas cases – and then proceeded to answer the next question raised by the detainees' expansive legal claims. 

It may be true, as the Times asserts, that "many thought" that Boumediene stood for more than a narrow jurisdictional point. But that proves only that many people misunderstand the case, either deliberately or not.

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