Separation of Powers

Current Issues

Judicial Restraints on Executive Transfer of Guantanamo Detainees.  The U.S. government argues that district court orders requiring the government to give 30 days notice to Guantanamo detainees prior to transfer to another country interfere with the executive's conduct of foreign affairs and Commander-in-Chief powers.  Click here for the government's brief; the separation-of-powers arguments begins on page 20.  (Note that the argument also tests the meaning of Munaf v. Geren, in which the Supreme Court held that the habeas statute extends to Americans held by U.S. forces overseas, but that district courts may not exercise their habeas jurisdiction to enjoin the United States from transfering American citizens alleged to have committed crimes within foreign sovereign territory to that foreign sovereign for prosecution.)  Petitioners counter that the courts can order detainees released under their habeas jurisdiction and Boumediene; the power to release includes the lesser power to control the terms of release; therefore the courts can control the terms of release (as in ordering the government to provide 30 days notice prior to transfer to another country).  The petitioner's brief is here; this argument begins on page 3.