Donald Crowley CROWLEY at uidaho.edu
Fri Dec 7 15:33:08 PST 2007

Switching topics seems like a great idea.  Besides my own interest in
the topic I also had my undergraduate Constitutional Law class do briefs
on the Boumediene case.  My own inclinations closely parallel yours.  It
does go to the heart of what we are or should aspire to as a country.
Arguing that non citizens can't lay claim to such  a right, or that it
wasn't required by common law, or that Guantanamo isn't part of the U.S
all seem to miss (or deliberately hide) what is at stake here.  I was
reasonably convinced the Court would eventually come to support these
habeas claims until Congress passed the MCA.  Now I'm not so sure.  I
would guess it all comes down to whether Kennedy's concern/interest in
International Law trumps the inclination not to fight both the executive
branch and Congress during a perceived crisis.   For me it is hard to
see how the grand rhetoric of the GWOT meets the definition of "invasion
or rebellion" but this Court's willingness to defer to executive claims
have left me speechless before.




From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert Sheridan
Sent: Friday, December 07, 2007 2:41 PM
To: Con Law Prof list
Subject: Habeas


Not to change the subject, or anything, but I presume that
list-contributors have been following with interest the issue asserted
in the Boumediene case argued the other day regarding habeas corpus for
Guantanamo captives.  The issue is whether a right to the writ should be
recognized.  The government takes the negative position.  The prisoners
claim a right to access the federal courts to test the basis of their
detention, and perhaps the conditions of same.  


Among the resulting commentary that I've seen in the popular press was
the notion that the Constitution does not expressly grant a right of
habeas corpus to anyone, but simply asserts that the right may not be
suspended except in cases of invasion or rebellion.  Sort of
establishment of a right by implication based on the assertion that it
may not be suspended.  We don't have the express grant of a right to
breathe air or eat food, but I think we take those for granted as
constitutional matters.  See Amend 9, unenumerated rights not to be
denied or disparaged, but retained by the people.  Arguments then fly as
to whether the Framers intended this or that and then we go back to
English law by which the right was established as though that should
control in GWOT.  The big argument seems to be that POWs in traditional
battlefield type wars where the combatants wear uniforms are not
entitled to habeas corpus relief to question their status.  WWII, Korea
and Vietnam would serve as examples.


But in the Global War on Terrorism (GWOT), traditional battlefields are
uncommon, the enemy doesn't wear uniforms, and one can be captured,
subject to extraordinary rendition, torture-questioning (an assumption,
I grant, but I read in today's NYT that our CIA destroyed the taped
evidence, no doubt for good reason), or Guantanamo as a result of being
denounced by another (don't ask who because according to another report,
defense counsel are forbidden to reveal the name of the denouncing
witness to the detained subject, his/her client.


It occurred to me that the whole notion of the scope of habeas is up for
grabs right now.  We can keep it constricted by looking to tradition, or
can take the position that the right should be liberally construed to
maximize the opportunity of the individual to force examination by a
neutral court of the basis and conditions of detention, a classic
government vs. the individual confrontation.  I would expect the more
conservative justices to favor the government position and the less
conservative members to favor the individual.


My own view is that the right to habeas corpus, i.e. access to the only
courts to which the military must answer, a right which tends to favor
individuals in any case, ought to be expanded to meet the conditions
faced by individuals, regardless that these new conditions differ from
traditional war-fighting venues and means.


Are there list members who've given this some thought and would care to
agree, disagree, or otherwise expound on this subject?  The answer seems
to me to go to the soul of the nation, to use a traditional term
indicating what kind of a nation we will be in the world, law-abiding to
a punctilio, or otherwise.






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