The Privilege of the Writ

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“The Privilege of the Writ: The Supreme Court and Post-9/11 Detainee Habeas Corpus Entitlement” is a paper I wrote in 2010. In some ways it is a follow-up to my 2009 Kiyemba posts, Parts I and II. But mainly it’s a survey of Habeas Corpus law before and after 9/11. The full paper can be accessed on SSRN.


Habeas corpus is the right to challenge one’s detention in a court of law. Prior to 9/11, habeas corpus jurisprudence erected a framework of entitlements that vary according to a person’s location, citizenship, and alleged crimes. Plotted on a timeline of American history, many of the landmark cases that progressively articulated this framework are clustered around wartime, and the entitlement conventions that obtained reflected the terminology of traditional warfare. After 9/11, as the nature of warfare and enemies evolved, and the Executive claimed unprecedented authority to detain enemy combatants, Guantanamo Bay became the extraterritorial detention facility of choice. Beginning in 2004, the Supreme Court responded with a series of cases that created a minimal but definite foundation of habeas corpus entitlement and due process for Guantanamo detainees. This article looks primarily at these post-9/11 cases, the traditional notions of habeas corpus upon which they are predicated, and the possible shortcomings they evidence relative to Guantanamo and to other extraterritorial detention facilities. Full text on SSRN.

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