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The purpose of this Article is to explain why the D.C. Circuit got it wrong. Part I provides an overview of the facts and relevant law that formed the basis for the decision. Part II shows that the court misapplied the basic factors set forth initially by the Court in Eisentrager and later clarified in Boumediene. Part III contains a proposed framework that reorients and reframes these factors in order to make habeas jurisdiction analyses more workable and consistent with the historical justifications for the writ, separation of powers considerations, and governing case law. Part IV applies this framework to the Bagram petitions and, in doing so, highlights the problematics of the D.C. Circuit’s decision. In short, under both existing standards and the suggested new way of looking at questions of wartime habeas jurisdiction, I posit that the petitions should not have been dismissed.

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William & Mary Bill of Rights Journal





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Law and Race Commons



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