Habeas and Detention without Conviction

Abstract

This chapter, which offers an analysis of habeas review of detentions for reasons other than criminal conviction (including the terrorism and immigration cases), explains why the Supreme Court should continue to be exceptionally vigilant about preserving habeas review for those who have not been found guilty of a crime but are confined nonetheless. In immigration and military detention, Congress has expressly limited the judiciary's power to review the executive's decision to detain. The writ of habeas corpus remained available to those targeted as potential threats. During armed conflicts, the risk of military detention and the significance of habeas review escalated in tandem. Military detention has made constitutional showdowns such as the one over the Guantanamo detainees exhausted in habeas cases before the Supreme Court. It is noted that habeas corpus performs its most vital role in checking detention without conviction.