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June 13, 2008

My Last Word on Boumediene

...hopefully. There has been a lot of discussion about how many constitutional protections are now possessed by the Guantanamo Bay detainees. The short answer is that we don't really know. Most obviously, they now have the constitutional right to have the legality of their detention examined in the federal courts. But the courts do not have any standards by which to measure the legality of detained alien military prisoners.

I suspect that many courts, when faced with the detainees' petitions, will be tempted to use the standards applied in habeas petitions from imprisoned criminals, since that is the type of habeas petition they are usually faced with. (The other possibility is habeas petitions from individuals held in contempt of court.) For those petitions, the courts look for constitutional deficiencies in the imprisonment. For example, whether the petitioner had access to a lawyer or a speedy trial under the Sixth Amendment. The court's examination is predicated on the understanding that the petitioning prisoner had constitutional rights to begin with.

What happens when the petitioning prisoner's constitutional rights are unclear, as is the case for the Guantanamo Bay detainees? No one really knows. Not all constitutional protections apply in all situations. Some of those limitations are explicit in the Constitution and some are not. For example, the Sixth Amendment protections textually apply only to criminal prosecutions. On the other hand, many of the criminal procedure rules which are derived from the Fourth Amendment apply differently depending on whether the proceedings are criminal or administrative in nature. Now, the Sixth Amendment clearly won't apply to military trials. But whether and how the Fourth Amendment will apply to military prosecutions is an open question. As I wrote yesterday, we just have no idea which protections apply to aliens who have no connection to the U.S. except for their capture by the military.

Common law rules are even more problematic. In the U.S., due process requires that the use of hearsay be sharply restricted even beyond the requirements of the Sixth Amendment. The common law rules of hearsay have been codified in all fifty states and federal law for criminal and civil proceedings, but the common law still exists. Do those common law rules apply with the same force to military prosecutions? I don't know, and no one else does either. There is no doubt that the Guantanamo Bay detainees have some Fifth Amendment due process right. I'm sure that due process requires some protection from hearsay. But I have no idea how much protection is required for this particular group of individuals: enemy alien combatants in military custody.

That question, in fact, all of the questions I raise above, are now in the hands of more than a dozen federal district court judges who probably have dozens of different theories between them. Those clashing theories will have to be hashed out by the various circuit courts and any disagreements among the circuit courts will have to be resolved by the Supreme Court. Guess who can't intervene to answer the questions? Congress. Unlike with the Hamdi and Hamdan decisions, which explicitly left Congress to cure the deficiencies, this ruling gives Congress very few options (even if Congress were inclined to do something).

I've long been sharply critical of Justice O'Connor, but for this case I would definitely have traded Kennedy for her. Even if O'Connor had concurred with the liberal result, she never would have agreed to this, no doubt because she was formerly a legislator herself. Kennedy was a law professor and it shows. Uh, not that I have anything against law professors...


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posted by Gabriel Malor at 11:28 AM

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