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Custodial and Collateral Process: A Response to Professor Garrett

In Habeas Corpus and Due Process, Professor Brandon Garrett disentangles two threads of decisional law knotted in the federal courts’ post-9/11 national-security detention cases.  Such cases can be fish-in-barrel targets for withering criticism, but Professor Garrett makes the novel argument that they reflect confusion about subtle differences between due process and habeas corpus. His thesis centers on the misguided response of the inferior federal courts to two Supreme Court cases: Hamdi v. Rumsfeld and Boumediene v. BushSpecifically, Professor Garrett argues that Hamdi posits a rule of due process that should draw from one body of authority and that Boumediene posits a rule of habeas privilege that should draw from another.  When the federal courts allow one concept to bleed into the other, he observes, they confuse their Article III responsibility to supervise certain kinds of custody.

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