New at Reason
Julian Sanchez examines Boumediene v. Bush, the latest Supreme Court habeas case.
Comments to "New at Reason":
Elemenope | December 12, 2007, 2:53pm | #
Constitutional Habeas? Who ever heard of such a thing? Surely not the Justice Department! Only commies like Arlen Specter speak of such things!But seriously, I have little doubt the SC will defer to statute...that is unless Scalia reclaims enough of his shattered soul to remember he's a conservative and not merely a cheerleader for authority.
ChicagoTom | December 12, 2007, 3:20pm | #
Kennedy is the Key here right?I'm not an expert on the SC, but I would imagine this is gonna be a 5-4 ruling with Kennedy being the deciding vote?
Geez, I though conservatives are supposed to value freedom...then why is it that Democrats and liberals are so much more likely to support Habeus?
You know it's becoming a deadhorse topic when only two people post.
TrickyVic | December 12, 2007, 5:07pm | #
Gotta love it. There were only two posts for a while, until I made that last post.James, that's the 64,000 Dollar question. I see all these people wearing flag pins screaming at people who are supporting what the flag represents. As a freedom loving individual, I don't like the irony.
I think the answer is that a lot of the Republicans in congress are not really conservative in any traditional sense, they are radically authoritarian and getting rid of Habeus is so radical that Democrats are in some way conservative by supporting it.
stephen the goldberger | December 12, 2007, 5:13pm | #
Its because they aren't american citizens so they are willing to look the other way. Just look at their hard line on immigration and you can see they only really value freedom for american citizens, if even that.Well yes...exceptionalism is one of the fundamental features of American politics.
juris imprudent | December 12, 2007, 10:17pm | #
Hmm, I don't subscribe to the theory that our rights, under our constitution apply to all people at all times. So, no, I'm not terribly concerned about them finding a lack of a habeas right in this case; in fact, it would be disturbing for SCotUS to find in favor of plaintiffs. [Which means they probably will.]That said, on an international reciprocity basis, abducting someone's citizens and detaining them indefinitely is a REALLY bad idea. It's bound to come home to roost and the only recourse will be to claim that might makes right.
Julian Sanchez | December 12, 2007, 11:34pm | #
"Hmm, I don't subscribe to the theory that our rights, under our constitution apply to all people at all times."A theory to which, so far as I know, nobody anywhere has ever subscribed. Why on earth would that be relevant?
juris imprudent | December 13, 2007, 3:31am | #
OK, so I was waxing a bit Kennedy-esque. I don't see standing to assert a habeas claim. That, like our other rights, covers members of the national community. The Algerians lack a legal leg to stand on.That does not excuse the extra-constitutional ambitions of this Administration. This just isn't the appropriate path to curbing that.
Julian Sanchez | December 13, 2007, 11:47am | #
If by "members of the national community" you mean "citizens" or even "legal residents," that's just not true, as the article notes. The question is not whether non-citizens have habeas rights under some conditions (they clearly do); the question is what those conditions are. If the Algerians were being detained within the U.S., there would be no question about the matter. The controversy here is whether the administration gets to cheat on the Constitution by maintaing a Cuban pied-à-terre.the innominate one | December 13, 2007, 12:56pm | #
good article, Julian. nice to see you back here.juris imprudent,
apparently you don't believe in "natural rights"?
admittedly, I don't, but most around here seem to.
The problem here really is that there is not much precedent to support habeas for aliens detained abroad (no matter how they are detained). This is a much different story once they step onto American soil. Although I agree that Guantanamo detainees should have habeas rights, I think it is a legislative issue (although I have argued the other way in a paper with case cites).
TrickyVic | December 13, 2007, 4:03pm | #
I would bet there are cases where an illegal alien in the US was tried in a US or state court and was given the same rights as a citizen.SCOTUS has already said that Gitmo does not count in the "abroad" catagory. Now the question of does it apply to other countries, I say no. Anyone who believes in sovereignty would not support that. But if a country wanted to arrest Americans for actions in their country that violated their laws, they should.
As far as natural rights, I believe in them, but the guys with the guns and the power might not. They can usurp my natural rights using the barrel of a gun pretty much at will. Who's going to stop them?
wo bu shi mei guo ren | December 15, 2007, 4:57pm | #
No constitutional habeas for alien enemy combatants detained abroad is the right conclusion. As the Court noted in Rasul, "all six of the facts" in Eisentrager were relevant only to constitutional and not statutory habeas, thus distinguishing it from Rasul.Now that it's constitutional habeas under the microscope, Eisentrager should be controlling.
Roberts, Alito, Thomas, Scalia, and - on a knife-edge - Kennedy for the win.
Finding constitutional habeas for alleged alien enemy combatants abroad will severely hamper the ability of the U.S. to wage war in future. Every POW detained in a conventional war will simply deny his association with the state as well as his status as a combatant, seek the writ, and force the United States to defend his determination as an enemy combatant in civilian courts.
Is that what you really want? Think about the consequences and the perverse incentives the Court will create in the event.
For those ragging on Scalia, please recall his dissent in Hamdi. He goes further than the plurality opinion in a case involving a U.S. citizen, on principle. In this case on the other hand, he will take the principled position on the opposite side of the aisle because of precedent in Eisentrager.
And no, I'm not American. Your courts finding expansive constitutional habeas rights will be good for me, if ever our countries are at war. But strictly as a matter of law, I have to question the zeal and wisdom of those taking the side of petitioners in this instance. American fifth columnists... lol, only in America.