Thursday, June 12, 2008

Habeas Corpus: Boumedine v. Bush

The United States Supreme Court has handed down its ruling in Boumediene v. Bush, 553 U.S. ____ (2008) (PDF) (hat-tip: SCOTUSblog, in which petitioners, alien enemy combatants held at Guantánamo Bay, challenged the Military Commissions Act. As most of you should be well aware, the Supreme Court, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), held that U.S. citizens who were apprehended in the battlefield as enemy combatants, and subsequently held on U.S. soil, had a right to the due process privilege of the writ of habeas corpus, i.e., had a right to be informed of the charges against them. This, despite the fact that the government could label them enemy combatants, and as a result, hold them for the duration of hostilities (which is open to very broad interpretation, with the Supreme Court traditionally, but not always, showing much deference to the President).

Left unclear was the question of whether or not non-citizens apprehended abroad could exercise the privilege of the writ.

In today's opinion, Justice Kennedy first acknowledges that the Military Commissions Act does expressly deny federal courts jurisdiction in cases where detainees petition for the writ. However, the Court holds that this was not a proper exercise of Congress' power under the Suspension Clause. Kennedy discusses the history of the writ, noting that its evolution was "painstaking, even by the centuries-long measures of English constitutional history." Kennedy then considers the intent of the Framers in including the clause, by examining an exchange at the Virgina ratifying convention, in which Edmund Randolph referred to the Suspension Clause as an "exception" to the "power given to Congress to regulate courts." Kennedy also notes the words of Alexander Hamilton, whose positions are usually at odds with Virginians (notably Thomas Jefferson and James Madison), in The Federalist No. 84, in which Hamilton approvingly quotes Blackstone for the proposition that because imprisonment is a more dangerous way of depriving a man of his liberty because it is less conspicuous than confiscation of his property or execution of capital punishment, the writ of habeas corpus was the bulwark of individual liberty.

All very well and good, you may say, and one can certainly see that citizens would be covered. But what about foreign nationals?

In a somewhat confusing history lesson on the meaning of "foreign", citing examples from 18th and 19th Century British practice, Justice Kennedy concludes that the formal status of a territory as "foreign" or not was irrelevant; what was relevant was the effect of the sovereign's laws. That is, although Scotland and England were one after 1707, English law, for whatever reasons, did not run in Scotland, while it did run in Ireland, even though Ireland was ruled under a separate crown (in theory). Accordingly, the write applied in Ireland, but not in Scotland. From there, Kennedy makes the argument that because federal law is unlikely to be disregarded at Guantánamo, and because Cuban courts have no jurisdiction there, federal law runs there, and therefore the writ applies there as well, regardless of the nationality of the petitioner.

I'm skipping over some of the analysis, because the opinion, not including dissents and concurrences, runs to 70 pages, and I'm in the middle of bar review. Suffice it to say that Kennedy finds that Congress has not satisfied the Suspension Clause by providing an adequate substitute. An adequate substitute, according to Kennedy, is one which accords a reviewing court the means to correct errors, which may arise even in procedures that comply with structural demands. (After all, Kennedy notes, if simple compliance with structural demands was enough, there would be no point to habeas corpus proceedings subsequent to fair trials. LLS--As a summer clerk for a judge in the criminal courts in downtown Los Angeles last year, I came across many habeas petitions which I had to answer. At least some of them raised facts that were not known at the time of trial, nor reasonably knowable to the defense, but which were material to the outcome. That is what Justice Kennedy means when he refers to correcting errors.) Kennedy makes the point that the Combatant Status Review Tribunal process is more accusatorial than adversarial, which cuts against the point of habeas corpus by taking away the means of the court to discover evidence that would have been material but which was not known or reasonably knowable to the defense.

Without reading the rest of the opinion, I should think that this is an important case, because of its potential impact on how the judicial process in the so-called "war on terror" is conducted.

Monday, June 09, 2008

What You Didn't Know You Didn't Know

The bar review period is now well and truly under way. Already, students find themselves falling behind, for a number of reasons. For those attending Bar/Bri, the assignment backlog is starting to pile up. Although on any given day, the workload seems reasonable, the material is scheduled so that every single day, a student must be operating at much closer to 100% than any other period except finals. Further, there are no weekend breaks, and the entire program is about 10 weeks long. In essence, many people are learning first year law school material all over again.

The Stud himself has fallen behind as well, and in his efforts to catch up, he stopped reading some of the preview materials, which means that when he does practice multiple choice questions, he sometimes gets thrown off. But more interestingly, in one of the sample essays, he got thrown for a real doozy: "There's a First Amendment right to attend a trial?!" First, if anything, the amendment one would most expect to find that in is the Sixth Amendment, which guarantees a right to a public and speedy trial.

So, as with many others, the Stud finds himself learning things he didn't even know that he didn't know.