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Abstract

Following the harrowing events of September 11, 2001, and pursuant to the Authorization for Use of Military Force (AUMF) passed soon thereafter by Congress, the United States Armed Forces began capturing and detaining individuals at the Naval Air Base in Guantanamo Bay, Cuba. The choice of where to house these detainees was not random. Internal memoranda from the Justice Department reveal that the Naval Base was selected as a means of avoiding any legal entanglements that might ensue from such imprisonment. What resulted was what some commentators have called a “legal black hole” at Guantanamo, a place where any individual meeting the government’s vague definition of “enemy combatant” could be detained indefinitely and, in many cases, without formal charges. As news of these detentions started to become public, and the detainees themselves began to initiate court proceedings to challenge the legality of their detention, a lively interplay between the Executive, the Judiciary, and later, the Legislature, began as a means of determining precisely what rights, if any, these detainees possessed. For its part, the Supreme Court, on several occasions, while recognizing the valid role of Executive powers under such circumstances, defended the rule of law and incrementally carved out legal protections for the detainees at Guantanamo. Such protections have not been absolute, however, and Congress recently entered the fray when it enacted the Military Commissions Act of 2006 (MCA), which purports to strip federal court jurisdiction over the habeas corpus claims of the Guantanamo detainees. The constitutionality of this legislation was considered by the Court of Appeals for the District of Columbia in the recent case of Boumediene v. Bush. The Boumediene court determined that the Guantanamo detainees had no rights, either at common law or under the Constitution, to federal habeas relief, and thus implicitly affirmed the validity of the MCA. It is the purpose of this Note to suggest that in so doing, the court foreclosed to the detainees any meaningful ability to challenge the lawfulness of their detention, leaving only very narrow judicial review of their continued status as “enemy combatants.”

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