Judicial Review, Combatant Status Determinations, and the Possible Consequences of Boumediene

John Bellinger raises an important question with respect to the ongoing detention policy debate: “Do we have it legally wrong, and if so, how should we do it differently, in a way that would work better?” Writing with specific reference to the jurisdiction-stripping aspects of the Military Commissions Act (“MCA”), Gerald Neuman replies that we do have it wrong, and that habeas review must be extended at least to the Guantánamo detainees. A panel of the D.C. Circuit recently rejected that argument in Boumediene v. Bush, and at the time of this writing a petition for certiorari in that case is pending in the Supreme Court. Bearing this in mind, I would like to consider the different paths that may lie ahead with respect to the issue of judicial review of combatant status determinations.

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