American Criminal Law Review Volume: 48 Issue: 4 Dated: Fall 2011 Pages: 1547-1572
This essay presents evidence for its thesis that the Guantanamo jurisprudence of the District of Columbia Circuit Court ("DC Circuit") is beginning to have a growing impact on "ordinary" bodies of American constitutional law.
The essay's focus on the DC Circuit stems from its having an effective monopoly on Guantanamo litigation. The particular case at issue is the "Omar" litigation, an outgrowth of a habeas corpus petition brought by a U.S. citizen detained by U.S. forces in Iraq based on allegations that he was actively involved in the insurgency against the Iraqi provisional government. In its most recent decision in July 2011 (Omar v. McHugh), a divided panel of the DC Circuit held that Congress had constitutionally barred the Federal courts from entertaining the merits of Omar's claim that he credibly fears torture or other forms of cruel, inhuman, or degrading treatment if transferred to Iraqi custody. In its holding, the panel relied on an earlier DC Court decision that did arise out of Guantanamo, the decision in Kiyemba v. Obama, in which the same court held that the Suspension Clause of the Real ID Act of 2005 confers a right to neither notice nor a hearing prior to a detainee's transfer to any country in which the Federal Government has provided assurance to the court that the detainee will not be tortured. Thus, although the Omar case is also a military detention case, it is one critical factual step removed from the terrorism-specific context of Guantanamo. This may constrain the scope of Federal habeas review in a host of other cases. 163 notes
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