Habeas Corpus and Guantánamo Bay: A View from Abroad

Abstract

The habeas corpus jurisdiction is a judicial authority to control state detention of any person, anywhere, when the judges can do so without breaching the duty of comity that they owe to other institutions of the state. In the leading United States Supreme Court decision, Johnson v. Eisentrager, 339 U.S. 763 (1950), the majority mistook the purpose of the writ, treating it as merely a protection for the rights of citizens. The purpose of habeas corpus is to uphold responsible government. The protection it provides for the rights of citizens is an instance of that broader purpose. The United States federal courts’ habeas corpus jurisdiction in respect of detentions in Guantanamo Bay can only be justified as a matter of constitutional principle, if there is an answer to the objection that comity toward the executive requires the judges not to inquire into the detention of aliens outside the United States. The Supreme Court gave part of that answer in Boumediene v. Bush, 553 U.S. ----, 128 S.Ct. 2229 (2008); this essay aims to articulate it.