Saturday, August 25, 2007

Boumediene and Al Odah Petitioners' Briefs

Marty Lederman

The petitioners in the Guantanamo habeas cases and their amici have filed top-side merits briefs in the Supreme Court. The case will likely be argued in December. We've got all the links over at SCOTUSblog.

As I note over there, the Boumediene case is not limited to the habeas question to which so much attention has been paid. The second question presented by that petition ("[w]hether Petitioners’ indefinite military imprisonment as 'enemy combatants' is unlawful, requiring the grant of habeas relief") is directed at the issue of identifying the category of persons who Congress has authorized the military to indefinitely detain. Part II of the Boumediene brief addresses this question.

There are many fine amicus briefs filed. I found especially noteworthy the brief on behalf of specialists in Israeli law, which discusses the procedures and substantive rules that Israel uses in its analogous terrorism detention practices. The Israeli courts and legislature have been giving these questions considerable attention for a much longer period than has our legal system.


Fortuntely, I'm with Scalia about using any current FOREIGN courts and legislatures for precedential value.

Perhaps, Kennedy would also like to rewrite the laws of war and Article III to adopt the Israeli judicial practice of issuing torture warrants?

Ever since the aftermath of the Diggs Taylor decision in 2006, rare has been the time I perused Denniston's site, though it is very worthwhile. The link to the court briefs there today is one such valuable occasion. The reality is the world still is developing a place for international law, and the 1948 redraw of Levantine maps is part of the lag in that process. I see a test approaching once again for the US supreme court, to discern the three threads of these separate cases. Writing now nearly a week after the original article and filing of the amici briefs, there appears to be Dept of Justice turmoil once again adding to the political mystery of how energetic the administration intends to be in this year when it would like a didactic chain of outcomes but must contemplate the issues of due process which have proved to be difficult thresholds these past five plus years for it. Back to reading the brief, now.

Hoping the blog software publishes this only once. JL

If the world were merely seductive, that would be easy. If it were merely challenging, that would be no problem. But I arise in the morning torn between a desire to improve the world and a desire to enjoy the world. This makes it hard to plan the day.
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