Title: Extraterritorial Application of the Writ of Habeas Corpus After Boumediene: With Separation of Powers Comes Individual Rights
Abstract: and months after the landmark case bearing his name was handed down, Boumediene's release was finally ordered 8 -yet Boumediene remains at Guantanamo. 9 Three of the five Algerian men were sent back to Bosnia, and even though Boumediene has been "freed," the U.S. governmentdoes not yet know where to send him because Bosnia will not readmit him to the country. 10 Boumediene's story illustrates the danger that Justice Stevens was pointing to in the above-cited quote: without habeas corpus, U.S. detention policy in the war on terror devolves into tyranny, holding prisoners without justification for years on end.The executive branch has detained prisoners at Guantanamo since shortly after 9/11 without meaningful review from the judicial branch of the U.S. government. 11 The landmark Supreme Court case, Boumediene v. Bush, decided on June 12, 2008, held that the writ of habeas corpus applied extraterritorially to the detainees held at Guantanamo. 12 Some have called the decision a judicial victory that gives freedom to the enemy in a way that will most certainly cause more American lives to be lost. 13 Judical victory or not, it remains clear that the true "victor"-Boumediene-has yet to receive his spoils.Considering the holding of Boumediene in the narrow context of Lakhdar Boumediene's story, the Court's decision seemed to concern individual rights, in particular a detainee's right to assert the writ of habeas corpus.On the other hand, Justice Stevens's remarks suggest another lens through which the holding might be viewed: one of separation of powers.Justice Stevens properly recognized that our democracy is negatively affected if the Executive has unrestricted power to imprison; therefore, the writ must serve as a check upon that power.The Boumediene decision reflected elements of both of these viewpoints,