Boumediene, cont.
Jack Goldsmith has a pretty solid roundup of the valid conservative critiques on Boumediene over at Slate.
The bad:
On my own first reading of the case, I was drawn to Justice Scalia’s view. The majority opinion by Justice Kennedy (for whom I clerked in the 1990 term) is extraordinary in its claims of judicial power during war. The court for the first time confers constitutional habeas corpus rights on alleged enemy prisoners captured and detained outside the United States during war. These rights are much more generous than anything contemplated by the international laws of war. More amazingly, for the first time during a war, the court invalidated a military measure—a statute that stripped habeas corpus in lieu of detention review by a military tribunal and the D.C. Circuit—that had the support of both Congress and the president. The decision only extends judicial review of military detentions to Gitmo, but the court hints that its writ might go wherever the military goes, depending on the circumstances. … Read for all it says and implies, this decision could place an extraordinary burden on the commander in chief and our soldiers.
The less-bad:
After reading Boumediene a few times, however, I doubt that Justice Scalia’s worst-case scenario will come to pass. Because at the end of Justice Kennedy’s opaque opinion, no doubt in response to the fierce dissents, he walks away from its more burdensome implications. He notes that “accommodations can be made to reduce the burden habeas corpus proceedings will place on the military.” He acknowledges (citing a pro-government state secrets case) the government’s “legitimate interest in protecting sources and methods of intelligence gathering.” He insists that “the law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.” And he states (again citing a famously pro-government precedent) that “in considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches.”
I don’t have much more to add to this. Anyway, I’m just killing time until the Court tells me it’s okay to live in the District of Columbia and own a handgun tomorrow. It’s going to be awesome. I’m definitely picking up one of these.