The Federalist Society

A Fundamental Misconception of Separation of Powers: Boumediene v. Bush

Engage Volume 11, Issue 3, December 2010

December 23, 2010

Heather P. Scribner

Terrorists attacked the United States on September 11, 2001. Congress quickly authorized the President to respond with military force, and the Bush Administration ordered the military detention of alien al Qaeda and Taliban fighters at Guantanamo Bay, Cuba. When the Supreme Court signaled in June 2004 that it would not permit the military to hold these enemy combatants indefinitely, Congress responded with § 7 of the Military Commissions Act (MCA). The MCA deprived the Supreme Court of jurisdiction to hear claims, including habeas corpus petitions, from alien enemy combatants challenging their detention. In Boumediene v. Bush, the Supreme Court held that § 7 of the MCA unconstitutionally suspended the writ of habeas corpus and that the detainees thus had access to the federal courts through the writ.

A Fundamental Misconception of Separation of Powers: Boumediene v. Bush  


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