In 2008, in Boumediene v. Bush, a five-justice majority of the U.S. Supreme Court declared that habeas corpus jurisdiction extended beyond the shores of the United States. This, it said, was a matter of American constitutional law. The Boumediene ruling was unprecedented, not just in this country in modern times, but in the entire ancient history of habeas corpus jurisprudence. Boumediene ripped up centuries of settled law, leaving in its wake the title of my essay — a legal mess.
The Guantanamo habeas cases march on, hundreds of them, case by case, in our court and in the district court. Law is made; precedents set; judicial standards declared. Soldiers capturing combatants in the field may have to comply with judicially prescribed evidentiary requirements. Questioning of prisoners may have to adhere to some sort of judicial norm. Exclusionary rules may be enforced. Modes of questioning may not exceed proper bounds as judges see them. Evidence may have to be handled and preserved in certain judicially approved ways.
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