Boumediene v. Bush -- a preview
Tomorrow, the Supreme Court will hear argument in the case of Boumediene v. Bush, in which foreign detainees challenge the legality and constitutionality of their detention as enemy combatants pursuant to the Military Commissions Act of 2006. To understand the issues in this case, I can’t think of a better source than this on-line debate presented by the Federalist Society. As usual, the Federalist Society has assembled distinguished and forceful advocates on both sides of the issue. Supporting the claims of the detainees are Timothy Lynch of the Cato Institute and Marty Lederman, a law professor at Georgetown. The Bush administration’s position is defended by prominent D.C. attorneys Brad Berenson and Andrew McBride. Berenson formerly served as associate counsel to President Bush.
Berenson identifies the following three core issues in the Boumediene case: (1) do alien al Qaeda and Taliban fighters held by the U.S. military abroad have rights under the U.S. Constitution, specifically including a constitutional right to a habeas corpus remedy in U.S. civilian courts, (2) if not, should the part of Cuba that we currently occupy under lease be considered part of the United States for these purposes, and (3) if the answer to either of the first two questions is yes, does the MCA create an adequate substitute remedy for habeas corpus. Berenson then answers the questions by setting forth three propositions which, he says, demonstrate why the U.S. should win the case:
(1) No Anglo-American court has ever recognized a habeas corpus right in alien enemies held outside the territorial jurisdiction of the capturing state. Not one. Ever.(2) The United States holds Guantanamo Bay under lease, and its occupation of that part of Cuba differs from true sovereignty in vital respects. Among other things, the U.S. can use that territory only for specified purposes; cannot sell or sublease it; and cannot exclude Cuban commercial vessels from the Bay.
(3) The Military Commissions Act creates the most generous set of procedural rights ever enjoyed by captured enemy alien fighters in the millenia-long history of warfare all across the globe. They are of course nothing like what we would expect in a civilian or domestic context, but they go far beyond what has customarily been available, under the Geneva Conventions or otherwise, for warriors who find themselves in the unfortunate position of being captured by their adversary.
I find this argument persuasive, but urge you to read the whole thing, including the mostly well-argued views of Lederman and Lynch.
In the final analysis, the outcome of this case likely will turn on Justice Kennedy's feelings. I’m guessing he’ll find something in the government's position that he’s not comfortable with.
