Citizenship and the Limits of Due Process since 9/11

Abstract

In the decade since the attacks of September 11, 2001, the American and British legal systems have significantly diverged in the ways that they relate individual rights to citizenship. In constitutionally extending habeas corpus to Guantanamo Bay, the U.S. Supreme Court’s decision in Boumediene retained a common-law approach that links rights to an individual’s membership in the national community and so privileges the liberty rights of citizens over noncitizens. In contrast, the U.K. House of Lords decision in the Belmarsh Case applied the European Convention on Human Rights so as to require the equal treatment of citizens and aliens, even if it meant extending a preventive detention regime to the former. In both the American and British legal systems, then, the idea of “due process of law” has deep conceptual and doctrinal limitations.