Boumediene and habeas corpus
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Plenty of other commentators have far more intelligent comments and insights on Boumediene [pdf] than I have to offer, so I will direct you to them (see this SCOTUSblog post for a collection of links as well).
I do want to leave you with this quote from Justice Kennedy’s opinion, via Orin at Volokh:
Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.
There is a reason it is called The Great Writ.
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There are also reasons that we are called a nation of laws and not men. The Supreme Court acted lawlessly today.
So you’re for indefinite detention with no legal process to challenge that detention, eh?
Glad we’re a nation that treasures its Constitution and not a nation of men.
Uh, did I say that? I just don’t think the courts get to decide.
“I just don’t think the courts get to decide.” That may be the single funniest comment I’ve ever seen on a legal blog.
Do the courts get to decide the income tax rate? Do they get to decide how and when we bomb in Afghanistan?
Yes, theoretically, the courts would get to “decide” issues relating to both of those subjects if the issue before the court was whether a government agency had acted unconstitutionally in either area.
Here, you can disagree with its analysis and/or decision - many people do - but the Court did not act “lawlessly” or without authority in determining whether suspending habeas corpus for those detainees violates the Constitution.
Forgive me if I’m putting words into your mouth, but I’ve never understood those who disagree with a decision and react by accusing the court/judge of being activist or out of line. Isn’t what you’re really saying is that you don’t agree with the Court’s constitutional analysis?
Miranda, no one has ever thought that the courts get to determine the propriety of bombing particular targets in Afghanistan, although you never know.
The Court did act “lawlessly”. No court has ever held that people determined by the military to be enemy combatants have access to US courts. Why? Because there is no such right. They made it up because they have the creeps about indefinite detentions. That’s what I am saying–they made this up.
I am interested in procedure. Would it initially be a question of jurisdiction? Does a filing of habeas on behalf of one or more detainees enable the court to enter the argument of if they could claim jurisdiction. Can the court see a problem and insert themselves sua sponte or do they need the petition to give them cause