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Access to Counsel, Res Judicata, and the Future of Habeas at Guantanamo

As Professor Andrew Kent explains, the recent litigation over whether noncitizens detained at Guantanamo have a continuing right of access to counsel once their habeas petitions have been denied or dismissed is just the tip of the iceberg. These cases raise a host of challenging questions about not only the rules governing the Guantanamo detainee litigation or the future of U.S. detention policy, but also the nature of the Constitution's Suspension Clause more generally. Professor Kent's analysis provides useful insight on these complex issues, especially his recognition of the significance of Chief Judge Lamberth's September 2012 decision reaffirming that the government cannot interfere with Guantanamo detainees' access to counsel, even for those who have already had their day in court.

But inasmuch as Professor Kent's essay suggests that the recent contre‐ temps provoking Judge Lamberth's ruling present the larger question of whether “Boumediene rights expire,” I argue in this Response that this is, in fact, not the real question implicated by the current Guantanamo litigation. As I explain in Part I, if Boumediene was rightly decided, it must necessarily follow that the federal courts have jurisdiction not only to entertain habeas petitions, but also to protect that jurisdiction by policing the ability of detainees to file future petitions. And, whereas Congress and the Supreme Court have imposed some limits on the relitigation of substantive claims in post‐conviction habeas cases, Part II suggests why, contra Professor Kent, res judicata categorically does not apply in the context of challenges to executive detention. Instead, the important questions going forward (to which I turn in Parts III and IV) will focus on the merits of potential successive habeas claims, including whether the government's detention authority might wane over time, and whether detainees' rights under domestic and international law will become more salient as time goes on.