In his post below, Orin suggests that if Congress were to object to the Court's Boumediene decision, it could "formally suspend the Writ as it applies to Guantanamo Bay" under the Constitution's Suspension Clause. I am not so sure.
The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This language seems to impose two separate conditions on the use of the clause: 1) "Rebellion or Invasion" and 2) "public Safety." Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don't necessarily accept) what showing would the government have to make? Would Guantanamo itself have to be invaded or subject to a rebellion? Or would a rebellion or invasion somewhere else suffice? Even if not justiciable, the application of these requirements to Guantanamo seems problematic at a conceptual level. And insofar as Boumediene could be used support the application of the Suspension Clause's requirements to other territories outside of the de jure sovereignty of the United States, it seems to me that the conceptual problems would only increase. Am I missing something?
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Not as far as I can see.
I wrote that Congress could suspend the writ, "subject to the possibility of judicial review of their assessment of the need for the suspension. " As a practical matter, doesn't it depend on whether the claims are justiciable, and if so, what the standard of review is?
The problem here is not that Orin is stretching the Suspension Clause, but that this ruling has obviously stretched the scope of Habeas Corpus beyond anything that was intended.
I still think the public safety issue would have to be with relation to washington DC, and sppecifically, between those court rooms used by the DC Circuit -- where even the Bush Administration is prepared to see adjudication -- and those used by the district court. 6th floor or 4th. Big safety implications there.
Larry Rosenthal
Chapman University School of Law
Yes. You are forgetting to blame Justice Kennedy for the necessary incoherence of his view. It is now the case that under our Constitution noncitizens abroad have greater constitutional habeas rights than citizens who engage in rebellion or insurrection on American soil.
In all likelihood, yes. And it is kind of sad that as a practical matter it turns on the issue of justiciability, not on whether the Constitution would actually allow such a suspension of the writ or not.
One of my main concerns with the whole treatment of the Gitmo situation has always been that it really is quite different from a traditional wartime detention scenario, but the Bush Administration insists on treating it as such. The very existene of the Gitmo detention system tends to demonstrate how unlike a typical battlefield, wartime system this is. But on the other hand, the Court's decisions have led to a shift from Gitmo to a reliance on Bagram in Afghanistan and possibly on another unacknowledged prison somewhere in Asia that I have heard hinted at in relatively non-public forums by some former officials. More than anything else, I think this whole series of fiascos and cases demonstrates a failure on the part of the political branches--bad cases make bad law, but so do bad decisions by the political branches. The executive, and to a lesser extent Congress, have been keen to really press an unnecessarily extreme view, to the detriment of the rule of law and precedent. What we really need is for Congress and the executive to formulate a smart, rights respecting system that is sensitive to the new challenges we find ourselves facing.
No. The political branches have been following the law and Justice Kennedy and his gang have seen fit to change it to suit their political preferences. The disrespect Justice Kennedy has shown for Eisentrager and the legacy of Justice Jackson is outrageous.
That isn't true at all. The political branches adhered to Hamdi. That isn't game-playing. Eisentrager is directly applicable, and Kennedy totally distorted it to conjure up a "functional" test that exists nowhere in the precedent and has no basis other than Kennedy's imagination.
So can they bring takings claims if the US requisitions their property? If they are detained without Miranda warnings, does the exclusionary rule apply to their detention hearing? How about speedy trial rights? Do they get those? Why not Bivens?
I don't know how to read the constitution so enemy combatants captured by our military get habeas rights, but no other constitutional rights.
That's why it makes no sense.
I wonder when the other shoe is going to drop and a federal judge is going to make us offer asylum to the terrorists that get released. Its coming.
I'm not sure if people in Guantanamo can make asylum claims to get visas to the U.S. Isn't that one of the reasons why Haitians and Kosovo refugees were sent there in the 1990s?
On the other hand, we now know that some detained in the past were factually innocent of any wrong-doing. It may well still be the case that some of the remaining detainees are also innocent of any wrong-doing. Some may have also gotten to Gitmo because they offended the wrong warlord in Afghanistan or the wrong Pakistani ISI operative.
We really don't know but if it turns out we've been doing the dirty work for such sordid characters and thugs in some cases, would an asylum claim really be so out of the question?
There is something appropriate about trying to provoke a constitutional crisis over a decision that has negligible practical effect (Justice Chicken Little's dissent is rather unconvincing on this point). The Court has decided a case about habeas corpus--surely the most unjusticiable thing imaginable! And they have said we have to go through a little more legal song and dance on the way to doing what we have been doing! Truly the decision that will be remembered as the one where the Court hijacked the course of history.
Really, the upshot of this is that there will continue to be more lawyers employed to do Gitmo work. Think of it as the "Would-Be National Security Lawyer Employment Case."
Or her clones (shudder).
But, to comfort myself, I can imagine it's already happening and this isn't going to make it worse.
And Eisentraiger is good law! Rasul v. Bush didn't happen in my America.