Keeping Boumediene off the Battlefield: Examining Potential Implications of the Boumediene v. Bush Decision to the Conduct of United States Military Operations

Abstract

Abstract : In its June 2008 decision, Boumediene v. Bush, the United States Supreme Court granted constitutional habeas corpus rights to foreign enemy combatants detained at Guantanamo Bay, Cuba. For the first time in United States history, foreign fighters detained overseas gained access to a United States court. By this holding, an enemy fighter may have his day in United States courts if the United States maintains functional control over the overseas detention location. Courts will determine functional control using practical considerations and objective factors. Boumediene should apply only to Guantanamo Bay and no further. Should Boumediene's functional analysis be extended to other locations, the consequences could be dire to military personnel on the ground and our Nation. This project examines some potential implications to U.S. military operations should Boumediene be extended, including whether Boumediene applies elsewhere, such as to Bagram, Afghanistan; enemy fighters bringing a federal case challenging detention; what rights other than habeas might now apply; whether the military must make policy or other adjustments in light of the decision; and the practical impact of the decision to troops on the ground. The paper argues that Boumediene should not be extended.