Friday, June 13, 2008


I don't suppose my point of view on this case is unique or profound, but I'm going to spout off anyway.

First, a collection of some of the comments I've made elsewhere.

Balkinization: "Early Summary of Boumediene"

-- the barring of habeas is acceptable given that detainee rights/protections are stronger than they have been in the past. --

I too see that as a sound-bite argument. In order to reach a defensible opinion on "protection of rights," one has to see the rules AS APPLIED. The CSRTs involved in these cases have been too opaque and appear slanted. Maybe they aren't, but without the right see the details (even in camera), no credible court is going to bless the process or outcome.

11:30 AM

Volokh: "Boumediene, Executive Power, and Congressional Power"

I don't know if this case is a first impression of striking down a Congressional War enactment "while the war is still on," but it's been my opinion for some time that the failure here belongs more to Congress than to the president.

Congress KNEW it had a duty to compose Military Commissions Law (i.e., that the Trial Commission unilaterally-constituted by the executive was unconstitutional), and didn't act until after the Hamdan decision. Then, it took the "easy" route of adopting the MCA language provided to it by the administration, instead of engaging in a serious and principled debate. Pure politics - and the result should be an embarrassment. Predictably, Congress is blaming the administration.

6.12.2008 2:53pm

BeldarBlog: "SCOTUS disgrace: Foreign terrorists captured abroad held to have same rights under U.S. Constitution as U.S. citizens"

I think you exaggerate the scope of today's decision, but to good effect.

I also think the gap between what has gone on, and an alternative history where this case comes out the other way, is not large. Had Congress and the president worked together in 2001/2002 to craft a MCA, Hamdan would have been decided differently. If the CSRT process left a substantive factual trail, SCOTUS may have found the process an adequate substitute for habeas.

Jun 12, 2008 4:31:52 PM

I see this decision as a firestop by SCOTUS, faced with failures by a derelict Congress and over-reaching executive. It's tough for the supposedly impartial branch to come out looking "right", when the public is partial.

Jun 12, 2008 6:40:17 PM

My "exaggeration" opinion is based on two points. First, the statute rendered unconstitutional had applicability to a very narrow class of detainee. It has no impact on POWs, people literally captured by US forces on a battlefield and held for the duration, etc. Second, SCOTUS did not remotely give the GTMO detainees the same right of access to courts, as common criminals have.

By over-reaching executive, I have several points in mind. First, the labels "worst of the worst" and "battlefield captured" don't clearly attach to every detainee. Boumediene was taken in Bosnia, after the Bosnian courts released him for want of evidence. Second, the statutory scheme passed by Congress was drafted by the administration, and is strongly biased toward obtaining convictions. The conviction-bias results from admitting testimony obtained under duress (playing judge, I'd admit it, but would diminish its weight); withholding inculpatory evidence (making it impossible to rebut); government findings being given a conclusive presumption of being complete and accurate (i.e., true); setting a presumption of guilt in combination with "preponderance" being the standard for finding guilt; and limiting the DC Circuit review to the question "were the procedures followed." Third, the administration "gamed" cases - e.g., shifting Padilla from military to civilian venue - in order to avoid court decisions on the merits.

Volokh: "It's Unlikely, But Worth Noting"

I think there are two overlapping methods to describe the scope of (and rationale for) suspension. One being geographic, that courts can't be "open" or "trusted" (see KKK situation) in a lawless geographical area. The other is as applied to a class of people. The fact that some infraction of the UCMJ can't be put before an Article III Court does not mean that habeas has been suspended as to members of our active military.

My sense of the over-riding point of habeas is that justice should be detached, transparent and objective; to the full extent practicable.

6.12.2008 3:45pm

-- This is the worst SCOTUS decision in the history of the United States. --

I'd put Wickard, Casey, and Kelo as worse for a society that aims to value individual freedom and the transparent and accountable exertion of the power that flows from the barrel of a gun.

What if Congress and the President worked in cahoots, and established GTMO as a black hole for detention? Is there no room for SCOTUS intervention?

Just saying, at some point any reasonable person would call for the Court to step in - e.g. if Congress and the President agreed that per se being at GTMO means guilt and the guilty have no right of rebuttal.

Give the miscreants a fair and transparent process, then execute or detain the guilty.

And so, the devil is hanging out there in the details, as to whether or not the Court saw a sufficiently fair and transparent process. 5 out of 9 claim they didn't.

6.12.2008 5:31pm

There is a natural tendency to evaluate the outcome of this case as SCOTUS stepping where it shouldn't, under a separation of powers basis for analysis. My inclination is to view it not only as where, but also as when.

The administration appears to be losing its case in Bismullah, and that case is focused on the adequacy of the MCA procedures, particularly on the record and bases for review that are to be before the DC Circuit as it evaluates the conclusions of a CSRT determination.

Those who object to the Boumediene decision on separation of powers grounds must also object to the DC Circuit's direction in Bismullah. So what? Well, if the DC Circuit (which is generally administration-friendly) reaches the same conclusion as to adequacy of the CSRT/MCA process (as construed by the administration), as 5 SCOTUS judges did in Boumediene, then it undercuts the buzz that "we're being ruled/ruined by 5 men in robes." The conclusion moves closer to the grail of being "mainstream" or correct as a matter of principle.

Andrew Kent's March 2007 article, "D.C. Circuit Upholds Constitutionality of Military Commissions," is worth revisiting in order to reinforce the point that the administration's position has always been contentious. Rogers dissented in the D.C. Circuit's Feb 20, 2007 decision upholding the MCA.

Tangentially related, but relevant (and good for a bit of levity), see "Benchslapped: Take This Brief and Shove It," the backstory on the rejection of an amicus brief presented to the DC Circuit as it was considering the Boumediene case.

Going Forward

Statement of Peter Carr, Deputy Director of Public Affairs,
on the Supreme Court Decision in Boumediene V. Bush

"We are disappointed with the Court’s decision. The Court recognized that an adjustment to typical habeas proceedings may be appropriate, but required the hundreds of actions challenging the detention of enemy combatants at Guantanamo to be moved to district court. The Department is reviewing the decision and its implications on the existing detainee litigation.

"While we disagree with the ruling, it is important to note that the Boumediene case did not concern military commission trials. Boumediene involved a challenge to the procedures that Congress and the Executive have established to permit enemy combatants at Guantanamo to challenge their detention during ongoing hostilities. Those enemy combatants who have been charged by a military commission with war crimes are afforded numerous additional protections in connection with those trials. Military commission trials will therefore continue to go forward. To the extent that Boumediene addresses matters that could affect the commission trials, those matters will initially be litigated before the military commissions themselves. In the event of a conviction, the accused will have the right to appeal to both military and federal appellate courts."

I see Senator Graham, as the opening act for a McCain speech in New Jersey, talking about the decision. He disagrees with the United States DOJ, saying that as a result of the SCOTUS decision, KSM now has the same legal standing as an American citizen, and that assigning of "enemy combatant" status will no longer be made by CSRTs trained in the matters of warfare, rather, that detainees are now able to forum shop among all of the Federal District Courts to find a sympathetic judge.

There is massive falsehood in Senator Graham's set of assertions.


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