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Posted June 30, 2008

Supreme Court Cites Virginia Law Review Article In Guantanamo Bay Detention Case

White
Professor G.E. White

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Contact: Rob Seal

U.S. Supreme Court Justice Anthony Kennedy cited the work of a Law School professor in a recent decision that helps define the legal rights of suspected terrorists held at the U.S. naval base in Guantanamo Bay, Cuba.

Boumediene v. Bush raised the issue of whether foreign prisoners incarcerated in facilities over which the United States exercises de facto sovereignty can challenge their detention in U.S. courts through the writ of habeas corpus. In his opinion, Kennedy referenced a Virginia Law Review article, "The Suspension Clause," written by Professor G. Edward White and history department colleague Paul D. Halliday.

"What they uncovered has major implications for current cases involving the claims of Guantanamo Bay detainees," said James Nelson, the law review's editor-in-chief.

For the article, which was published in the May 2008 edition of the Virginia Law Review, White and Halliday looked at the history of habeas corpus rights in the United States.

"We wanted to summarize where we thought English and early American history led with respect to the original understanding of the reach of habeas corpus at the time the Constitution was drafted," White said.

In a 5-4 decision handed down June 12, the Supreme Court decided that foreign prisoners detained in territory over which the U.S. has exercised sovereignty have the right to challenge the legality of their detentions in U.S. courts. This is true even for prisoners arrested outside U.S. territory.

That ruling is largely consistent with the original understanding of the reach of habeas corpus, White said.

In their research, White and Halliday found cases from the late 18th century in which residents of territories of the British Empire who were not citizens of England, such as inhabitants of India or the American colonies, routinely filed habeas petitions in territorial courts. They also found a few cases in which resident aliens who were citizens of nations at war with England or the United States were allowed to challenge their detentions through habeas writs.

What they didn't find, White said, were cases that mirrored the circumstances of Guantanamo Bay detainees who were arrested in military conflicts outside the U. S., transported to the Guantanamo facility and held indefinitely without trial.

"The reason we didn't find precise parallels to Guantanamo detainee cases is that there really is no parallel between military conflicts during the periods prior to and during the framing of the Constitution and the War on Terror," he said. "There hasn't been a formal declaration of war against the Taliban or Al-Qaeda, and they don't resemble the sovereign nations of the 18th century. Moreover, it is now possible for U.S. authorities to arrest people in Afghanistan and transport them to Cuba in a comparatively short space of time. That sort of detention procedure wasn't remotely possible in the framing era."

White said he and Halliday were aware, when working on the article, that the court would be investigating the history of habeas corpus in the Boumediene case, but they had a larger project in mind: using some newly mined archival sources to revise the conventional historical account of the development of early Anglo-American habeas corpus jurisprudence. The law review article first came to the court's attention when it was cited in electronic form in some briefs filed in Boumediene.

"The Virginia Law Review is proud to have published such an influential piece, especially given the recent decline in Supreme Court citations to law review articles," Nelson said.

• REPORTED BY Rob Seal