Commentaries

BOUMEDIENE’S WAKE
Andrew Tutt

Boumediene was doomed the day it was decided. In failing to elaborate on the substantive rights of aliens detained overseas, in assigning exclusive jurisdiction over post-Boumediene habeas claims to a circuit court of appeals that doubted the wisdom of intervention, and in fashioning a balancing test for federal court jurisdiction that only the prison at Guantánamo could meet, Boumediene laid the blueprint for its own elusion. Justice Scalia crisply summarized the strategy: henceforth, to slip through Boumediene’s grasp, the military would be well advised to keep prisoners in Afghanistan, transfer them to other foreign military bases, and turn them over to allies for detention.

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