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Ignoring History in the Gitmo Case

By Kent Scheidegger et al.

My "initial thoughts" post on the Boumediene decision noted that the Court gave short shrift to the historical point regarding habeas and military prisoners with no prior connection to the country. I will expand on that point a bit here. At pages 16-17 of the slip opinion, the Court says, We know as well that common-law courts entertained habeas petitions brought by enemy aliens detained in England—“entertained” at least in the sense that the courts held hearings to determine the threshold question of entitlement to the writ. See Case of Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775 (C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep...continue to full post

Full post as published by Crime and Consequences on June 13, 2008 (boomark / email).