Joshua Alexander Geltzer (Yale University – Law School) has posted Of Suspension, Due Process, and Guantanamo: The Reach of the Fifth Amendment after Boumediene and the Relationship Between Habeas Corpus and Due Process (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:
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This Article examines the surprisingly under-explored relationship between habeas corpus and due process, using ongoing detention at Guantanamo Bay as inroads into the broader topic. The Supreme Court’s recent decision in Boumediene v. Bush held that the Constitution’s Suspension Clause applies to detainees at Guantanamo, thus constitutionally protecting their filing of habeas petitions. Since that decision, the Court of Appeals for the D.C. Circuit has affirmed its pre-Boumediene conclusion that the Due Process Clause does not apply to Guantanamo detainees. This unusual severing of the typically dual protections of habeas review and due process raises the interesting question of how those two constitutional provisions relate. This Article sets out five conceptions of the relationship between habeas and due process, then shows how each of those conceptions connects to a particular reading of Boumediene. The Article concludes that, if and when the issue of the applicability of due process to Guantanamo reaches the Supreme Court, the Court’s conclusion may well come down to Justice Kennedy’s vote, which is likely to hinge on whether he applies to the issue the same “impracticable and anomalous” test that he utilized when writing the majority opinion in Boumediene or whether he approaches the issue from the separation-of-powers perspective that he also emphasized in that decision. This Article finds that which approach emerges as dominant has implications beyond Guantanamo: it is likely to suggest a broader understanding of the still-uncertain relationship between the Suspension and Due Process Clauses. Hence, the Article reveals that while the opinion in Boumediene initially appears susceptible to multiple, complementary readings, digging deeper so as to explore those readings’ implications for the underlying issue of the relationship between habeas and due process reveals distinct tensions, as the different readings of Boumediene suddenly begin to pull in different directions.