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98 Cornell L. Rev. Online 1 (2013)

handle is hein.journals/clro1 and id is 1 raw text is: CUSTODIAL AND COLLATERAL PROCESS: A RESPONSE TO PROFESSOR GARRETT Lee Kovarskyt INTRODUCTION ..........1................................... I. CUSTODIAL VERSUS COLLATERAL PROCESS IN HAMDIAND BOUMEDIEE. ............................... ................. 3 II. THE PROBLEMS WITH FUNGIBLE PROCESS ..................... 9 III. INNOCENCE ANALYSIS ...................................... 14 CONCLUSION.................................................... 18 INTRODUCTION 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. Bush.3 Specifically, 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.4 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.5 I agree almost entirely with the descriptive and normative content of Professor Garrett's insights. Due process and the habeas privilege are distinct constitutional phenomena, federal courts almost pathologically confuse them, and the confusion makes it impossible to achieve any decisional equilibrium. My primary quarrel with Professor Garrett's critique is that he, perhaps reluctantly, embraces 4 Assistant Professor, University of Maryland Francis King Carey School of Law. See Brandon L. Garrett, Habeas Corpus and Due Process, 98 CORNELL L. REv. 47 (2012). 2 542 U.S. 507 (2004). :3 553 U.S. 723 (2008). 4 See Garrett, supra note 1, at 51-53. 5 See id. 1