Boumediene v. Bush

Doing a little dance today over the decision in Boumediene and Al Odah v. US. It turns out that Congress didn’t accidentally suspend habeas corpus while authorizing the use of military force. Yay! More here, and the decision can be read here. Also, here’s a line that I really, really enjoyed:

“Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” (Boumediene v. Bush, 35-6)






2 responses to “Boumediene v. Bush”

  1. D. Joe Griffin Avatar
    D. Joe Griffin

    Does the Boumediene decision have any effect on the Verdugo-Urquidez decision in 1990 which did not extend 4th Amend. rights extraterritorially?

  2. admin Avatar

    I don't see why it would. The rights in the 4th Amendment explicitly inhere in "the people," while the habeas privilege has the scope given it by common law.

    Another way to look at the distinction is to distinguish the question of the scope of an individual right to judicial review from the systemic demand for the separation of powers. The phrasing in the Suspension clause places that question in the tradition of Marbury v. Madison. The majority was clearly motivated by its own feeling of entitlement, i.e. by the sense that the Constitution requires a certain balance of responsibilities and powers among the branches of government, which is why I highlighted the quote about saying "what the law is." Judicial review is ultimately a right inhering in the judiciary, which only attaches to the individual as a matter of convenience.

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