The Supreme Court ruled in Boumediene v. Bush that detainees at Guantanamo
Bay have the right to challenge their detention in habeas corpus proceedings and
that the courts hearing these claims must have some ability to provide “conditional
release.” However, in Kiyemba v. Obama, the United States Court of Appeals for
the District of Columbia ruled that if a detainee cannot be released to his country of
origin or another country abroad, a court sitting in habeas cannot grant the
detainee release into the United States. The court based its determination on the
assumption that the plaintiffs’ request for release implicated “admission,” generally
considered within the purview of the political branches and inappropriate for judicial
review. This Note argues that “parole,” a more flexible mechanism for release
into the United States, is not limited by the admission precedents requiring extreme
deference. This Note then surveys cases in which the judiciary has granted parole as
a remedy, and argues that courts have done so primarily in cases of executive misconduct.
Thus, courts confronting requests for domestic release from executive
detention without a legal basis should consider parole as a remedy distinct from
admission—one that serves a valuable purpose in maintaining a meaningful check
on the Executive.
LawReview
