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Habeas for the Twenty-First CenturyUses, Abuses, and the Future of the Great Writ$
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Nancy J. King and Joseph L. Hoffmann

Print publication date: 2011

Print ISBN-13: 9780226436975

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226436968.001.0001

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: Habeas and Detention without Conviction

: Habeas and Detention without Conviction

(p.18) Chapter Two: Habeas and Detention without Conviction
Habeas for the Twenty-First Century
University of Chicago Press

This chapter, which offers an analysis of habeas review of detentions for reasons other than criminal conviction (including the terrorism and immigration cases), explains why the Supreme Court should continue to be exceptionally vigilant about preserving habeas review for those who have not been found guilty of a crime but are confined nonetheless. In immigration and military detention, Congress has expressly limited the judiciary's power to review the executive's decision to detain. The writ of habeas corpus remained available to those targeted as potential threats. During armed conflicts, the risk of military detention and the significance of habeas review escalated in tandem. Military detention has made constitutional showdowns such as the one over the Guantanamo detainees exhausted in habeas cases before the Supreme Court. It is noted that habeas corpus performs its most vital role in checking detention without conviction.

Keywords:   habeas corpus, terrorism, immigration, Supreme Court, military detention, habeas review, Guantanamo detainees

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