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...
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...
