Criminal Law Forum

, Volume 23, Issue 4, pp 347–362 | Cite as

The Legal Dilemma of Guantánamo Detainees from Bush to Obama

  • Linda A. Malone


The stage for the Guantánamo detainees’ commission proceedings was set by the interplay between the Executive’s detention powers and the Judiciary’s habeas powers. The Bush administration turned to Congress to provide less than what was required by the court, instead of the minimum deemed necessary to comply with each decision, or to explore another legal argument for not complying. This article examines how the law for the Guantánamo detainees has been shaped by the US courts and by Congress. The article begins by observing the guidelines issued by the Supreme Court for compliance with the constitutional and humanitarian law requirements, and the status of the law which set the stage for the landmark decision in Boumediene v. Bush. It then turns to the line of cases in the D.C. Circuit that have defined the parameters of habeas proceedings and further examines President Obama’s 2011 Order and the review procedure it set for the Guantánamo Bay detainees. The article concludes with a reflection on the torture policy of the Bush administration and the future of military commissions.


Federal Court Bush Administration Geneva Convention Executive Branch District Court 
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Copyright information

© Springer Science+Business Media B.V. 2012

Authors and Affiliations

  1. 1.Human Security Law Center, Marshall-Wythe Foundation Professor of Law, William & Mary Law SchoolWilliamsburgUSA

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