I have three levels of comments: 1. History. Although Kennedy's opinion spent a lot of time with the history of habeas, it drew only two conclusions with much bite.The first is that the Suspension Clause was passed before the Bill of Rights, so one could argue that the right to challenge one's detention before a court or a judge was treated...
Thanks to Opinio Juris for inviting me back. These things are always fun. I’m not going to try to systematically address Boumediene, but will instead offer a few thoughts about Boumediene's use of history and the relationship between Boumediene and Munaf. 1. I agree with much of the Chief’s and Scalia’s criticisms of the Boumediene majority opinion’s aggressive...
It didn’t take long for the media and the commentators to quickly seize on the real question after Boumediene: now what? Let me begin by suggesting there are at least four categories (and probably more) of cases in which we must separately assess Boumediene’s implications: Non-citizens detained at Guantánamo challenging their detention. Non-citizens detained at Guantánamo challenging their pending trial by military...
Beth Van Schaack has a really nice primer on Boumediene available here. She will join us at Opinio Juris for more detailed discussion and analysis of the opinion shortly. ...
While there's much, much more to be said on the Supreme Court's blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today—and the news there is hardly pro-detainee. In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of...
Roger points to the importance of territory in marking the boundaries of citizenship. The other key element in constitutional cartography has been citizenship status, at least since Reid v. Covert. When it comes to enjoying the protection of the Constitution abroad, as a general matter citizens get it, noncitizens don’t. Justice Kennedy’s opinion in Boumediene appears to slice at that in...
First, my thanks again to Roger, Peggy, and the rest of the OJ crew for the opportunity to share some preliminary thoughts on Boumediene. Obviously, there’s already a lot out there, with much more yet to come. Rather than tackle the big and obvious headline stuff, or try to respond to other points already made, I want to focus on...
As our Boumediene instant symposium gets underway, I thought it might be interesting to note that the Israeli Supreme Court has just upheld the Incarceration of Unlawful Combatants Law, which permits the indefinite detention of a person who does not qualify for POW status and "who has participated either directly or indirectly in hostile acts against the State of Israel...
Just to get the discussion going, I wanted to highlight the Court's analysis in Section IV of the Boumediene decision on the territorial reach of the Constitution. The precise question presented is the geographic question of whether the constitutional guarantee of the writ of habeas applies to detainees at Guantanamo Bay. Before discussing the case, it is worth...
I haven't had time to come up with anything interesting or cogent about the expected but still disturbing result in Boumediene. And we have an all-star cast of guest-bloggers ready to comment, as Roger points out below. But as a place to begin, it is worth checking out Chief Justice Roberts' powerful conclusion to his dissent, which I think...
The Supreme Court has just rendered its decision in Boumediene v. Bush, announcing that the DTA procedures are not an adequate and effective substitute for habeas corpus and that the MCA operates as an unconstitutional suspension of the writ. Opinio Juris is very pleased to announce an “insta-symposium” to discuss the decision. We have an amazing line-up of guests, including...
Adam Liptak has an excellent front-page story in today's NYT situating the US approach to hate speech in the international context (as part of his series “American Exception"). Together with Jeremy Waldron’s recent New York Review of Books piece on the subject, could this be the leading edge of possible constitutional adjustment? It would have been mostly unthinkable as recently...
