Marc D. Falkoff

Document Type



The lesson from the Hamdi plurality and the Court in Boumediene is not that all hearsay is admissible in an executive-detention habeas action, but rather that the district courts should exercise their discretion in determining whether to allow particular hearsay statements into evidence and should seriously consider the degree to which such statements could be relied upon when assessing the legality of a detention. Although the legal and political issues raised by the habeas corpus authority of federal courts are familiar to most lawyers and legal scholars in the context of federal review of state convictions, in this article I am primarily interested in the use of habeas corpus to challenge executive detentions.The Court will sometimes examine, by affidavit, the circumstances of a fact, on which a prisoner brought before them by habeas corpus has been indicted. The judge before whom the Guantanamo habeas cases were consolidated denied the government's motion to dismiss, holding that the prisoners were entitled to fundamental protections of the Constitution--including due process of law--and that they therefore were entitled to habeas hearings to determine whether those rights had been infringed. Noting that the Court had jurisdiction to hear Hamdi's claims pursuant to the federal habeas statute, Justice O'Connor stated that "all agree that 28 U.S.C. $ S 2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review," and that, "most notably, $ S 2243 provides that 'the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts,' and $ S 2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories." If the Guantanamo petitioners, for example, are properly before the courts pursuant to section 2241 of the Title 28 of the United States Code, they would presumably be entitled to at least the "skeletal" procedures provided by Congress for other habeas petitioners. Second, because habeas corpus is nominally a civil action, one might suppose that the Federal Rules of Civil Procedure--and particularly their liberal discovery rules--would apply of their own force to habeas actions.

Publication Date


Original Citation

Marc D. Falkoff, Back to Basics: Habeas Corpus Procedures and Long-Term Executive Detention, 86 Denv. U. L. Rev. 961 (2009).


College of Law

Legacy Department

College of Law





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