I regret that my post is delayed somewhat by travel. I am at present writing from Venice, en route to which I had occasion to do more thinking about the implications of Boumediene than I did for detailed dissection of its precise phraseology. The fortuity of my presence overseas allows me to report the prevailing media spin that...
I want to return to the issue of the Court’s discussion of de facto sovereignty, which has the potential to be one of the most important holdings of Boumediene. The reason it is so important is that the Court’s articulation of de facto sovereignty has the potential to be the new test for the application of constitutional guarantees to...
I also would like to begin by expressing my thanks to the Opinio Juris team for giving me the opportunity to share some thoughts on the Boumediene decision. My post is a bit tardy due to the fact that I have been in Israel staying in some places with limited internet access. More on some perspective judicial review...
Perhaps the least persuasive part of the largely unpersuasive Boumediene opinion is its attempt to distinguish the most relevant and binding precedent on the subject: the Supreme Court's 1950 decision in Johnson v. Eisentrager. In Boumediene, the Court effectively overruled Eisentrager's holding that enemy aliens cannot have the benefit of habeas corpus when held outside the territory of...
Thanks very much to Opinio Juris for including me in this conversation. I look forward to trading ideas with the terrific group of commentators that Roger and his colleagues have lined up. I should admit from the outset that my instincts here are not exactly neutral: while I now teach national security and international law at Fordham,...
Chief Justice Roberts is right: Guantanamo is “unique.” [p2] But can that which is unique be analogized? If not, why work by analogy? Yet this is what the justices have generally sought in the past. They ask, what case can I find that looks like today’s? Simple answer? None. To ask this question of the past is to seek what...
Though the opinion in Munaf and Omar should give us all some pause, I'm still thinking that yesterday's Boumediene opinion comes as close as I've seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security. The majority opinion doesn't just embrace a functional approach to resolving questions of the...
Having consistently benefitted from the high level of dialogue on this site, and conscious that it inhabits a scholarly field in which I do not specialize, I particularly appreciate the invitation to post a response to the Boumediene decision here. Of course, the ruling raises numerous legal, historical, and practical points that will be the subject of hundreds of thousands of...
As others have noted, the Supreme Court left open a number of pressing questions in its Boumediene opinion. Most intriguing from my perspective is the choice of law issue addressed to the question of which body (or bodies) of law will apply to determine the lawfulness of the detainees’ detentions in the forthcoming habeas proceedings. To this issue, the Court...
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...
