April 12, 2011
Arandes on Indefinite Detention at Guantanamo
Laura J. Arandes has posted Life Without Parole: An Immigration Framework Applied to Potentially Indefinite Detention at Guantánamo Bay (New York University Law Review, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court ruled in Boumediene v. Bush that detainees at Guantánamo Bay have the right to challenge their detention in habeas corpus proceedings and that the courts hearing these claims must have some ability to provide “conditional release.” However, the United States Court of Appeals for the District of Columbia has ruled that if a detainee cannot be released to their country of origin or another country abroad, a court sitting in habeas cannot grant them release into the United States. The court based its determination on the assumption that the Uighurs’ request for release implicated “admission,” the terms and conditions of which are generally considered within the purview of the political branches and inappropriate for judicial review. This Note argues that “parole,” a more flexible mechanism for release into the United States, is not limited by the admission precedent requiring extreme deference. This Note then surveys cases where the judiciary has granted parole as a remedy, and argues that courts grant the remedy primarily in cases of executive misconduct. Thus, courts confronting requests for domestic release from executive detention without legal basis should consider parole as a remedy distinct from admission, one that serves a valuable purpose in maintaining a meaningful check on the Executive.
April 12, 2011 | Permalink