Problems with Boumediene and (theoretical0 legislative solution)

[Eric Freedman]

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                         Eric M. Freedman
    Maurice A. Deane Distinguished Professor of Constitutional Law
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>>> Earl Maltz <emaltz at camden.rutgers.edu> 6/14/2008 4:15:35 PM >>>
1.  Why isn't Boumediene on the following reasoning:

Congress did not suspend the writ of habeas corpus at all.  It simply 
denied access to the federal courts, leaving the state courts free to 
consider habeas petitions from the inmates.  Moreover, since Congress 
did not have to set up lower federal courts at all (or if it did, to 
allow foreign nationals acess to such courts generally), there can be 
no constitutional right for a foreign national to obtain habeas 
relief from such a court.

-This idea would have a lot more merit if you first overruled Abelman
and Booth.
As things stand, your proposal would leave federal prisoners with no
right to obtain the writ from any
court.

2.  The theoretical solution to this problem (as well as the problem 
created by the Zadvydas case) would be for the United States 
government to purchase a small island, set up a puppet government, 
grant the government independence together with a treaty requiring 
the new government to accept aliens deported as undesirable, and then 
[ay for the building of detention facilities there.  The government 
has undoubted authority to send the detainees to this new penal 
colony, and once there (clearly outside the sovereign territory of 
the United States), anything goes.

-See the Omar/Munaf cases also decided on Thursday.
The key would be who has actual functional control of the
release vel non of the prisoners, regardless of the legal status of
their
physical location.

Best. -E.



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