Boumediene and the Uncertain March of Judicial Cosmopolitanism, by Eric A. Posner

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In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo Bay have the constitutional privilege of habeas corpus and that the review procedures established by the Detainee Treatment Act do not provide an adequate substitute. Justice Anthony Kennedy rests his majority opinion on what he calls

a theory of separation of powers, but on inspection it becomes clear that the real basis of the opinion lies elsewhere. The holding turns on an implicit theory about the rights of noncitizens, a theory that is prior to the conception of separation of powers and is essentially

about who belongs to the political community or demos. Justice Kennedy?s theory is a cosmopolitan theory.

For more information, please read full article. This article is from the Cato Supreme Court Review 2007-2008.

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