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Al-Bihani, Not So Charming

Posted by on Thursday, July 5, 2012 in Notes, Vol. 43 No. 4, Volume 43, Volumes.

In June 2008, the Supreme Court extended the Suspension Clause to foreign detainees at Guantánamo Bay, Cuba.  Since then, courts have struggled to define appropriate standards to govern detainee habeas corpus petitions.  Until recently, no court questioned the relevance of international law to the development of these standards.  But, in January 2010, a D.C. Circuit panel held that international law does not constrain executive detention power.  That decision could devastate detainee habeas corpus petitions by preventing courts from examining the heart of the government’s own claimed detention authority.

This Note evaluates the proper role of international law during ongoing Guantánamo detainee habeas corpus litigation through an examination of the D.C. Circuit panel’s legal analysis in Al-Bihani v. Obama.  Because international law has always played a role in U.S. jurisprudence, judges already have the necessary tools to grapple with the international legal issues that the detainee cases present.  In light of the Legislature’s refusal to develop appropriate standards to govern these cases, the Judiciary must use these tools to balance national security with individual liberty.

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