Prognostications—Boumediene and Congress

Slate's blog on legal issues.
June 2 2008 4:07 PM

Prognostications—Boumediene and Congress

OK, if you insist, Deborah, a few predictions ... with the caveat that my track record on these matters has been decidedly mixed of late.

First, what will the court do? In Boumediene— unlike in Hamdan , Hamdi , and Rasul— Justice Kennedy almost certainly was assigned to write the "lead" opinion. After oral argument, my prediction was that he was writing for two separate five-justice majorities: (i) For one majority, an opinion holding that Article I's Suspension Clause (and perhaps the Due Process Clause, too) applies to the detainees at Guantanamo; but (ii) for a different majority, holding that the MCA/DTA provision for D.C. Circuit review of CSRT decisions is an "adequate alternative" to habeas, thereby sustaining the constitutionality of the MCA/DTA review system. (In its cert. grant, the court virtually invited the D.C. Circuit to demonstrate that its review of the Pentagon's decisions would be robust; and at oral argument, Justice Kennedy focused on the question of why the D.C. Circuit could not itself ensure compliance with constitutional and statutory standards.)

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But then, after Boumediene was argued, the D.C. Circuit issued its en banc opinions in the Bismullah case, which were followed by the Bush administration's own petition to the Supreme Court in that case. Those opinions and that petition demonstrated ...

... continue reading at Balkinization .

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