What Will the Supreme Court Do In Boumediene v. Bush?:
In today's New York Times, Linda Greenhouse offers an excellent preview of Wednesday's oral argument in Boumediene v. Bush. You can read the briefs in the case (both the merits briefs and the many amicus briefs) at this link.

  What will the Supreme Court do with this case? No one knows, but here's some speculation. For reasons explained in part in my Congressional testimony back in May, I'm pretty confident that there are five votes for the view that the Guantanamo Bay detainees have a constitutional right to the writ of habeas corpus. Justice Kennedy's Rasul concurrence pretty much said so back in 2004, and I doubt Justices Stevens, Ginsburg, Souter, and Breyer will disagree now that they're forced to answer that question.

  The real question becomes, what does that right mean? Here it helps to recognize that there are two different procedural rights at stake. First, there is the Due Process right to a hearing on the lawfulness of detention. Second, there is the right to a federal court habeas corpus hearing on whether those Due Process rights were denied. What's the difference? The first right can be satisfied by procedures within the Executive Branch. In contrast, the second is a right to a hearing in court before a judge.

  The difficulty for the Court is that no one really knows what underlying Due Process rights the detainees have. They may have none; they may have a lot. We just don't know, as the Court has never addressed the issue and relevant precedents are sparse. This raises an interesting legal question: If the detainees have habeas rights, does that require a full traditional Article III hearing regardless of what underlying Due Process rights the detainees have? Or is the adequacy of the habeas proceeding dependent on the scope of the underlying right? To make a long story short (and to oversimplify things considerably), the Boumediene brief argues the former; the DOJ argues the latter.

  What will the Court do? If I had to guess, I would guess that the Justices will strike down the jurisdiction-stripping provisions of the MCA and rule that the detainees are entitled to full habeas proceedings to determine whether any constitutional rights the detainees may have have been denied. That way, the Court can definitively resolve the case without having to address the underlying question of the detainees' rights. (If this happens, presumably JPS assigns the opinion to AMK.) The big question becomes whether the Court or some of individual Justices in the majority will say anything about the detainees' underlying Due Process rights. Hard to know.

  Anyway, that's my pre-argument speculation, no doubt worth exactly what you paid for it. The Court will hold argument on Wednesday morning at 10am. Same-day audio will be posted.