Thus, a substitute proceeding for habeas corpus requires at least the right to independent legal counsel. That right being discrete combined with the military's insistence on the detainees lacking it, the DTA cannot balance the competing interests. Arlen Specter's amicus brief cited lack of independent defense counsel first in his list of problems with the review tribunal, finding the restriction fatal. "[T]he lack of counsel as the [review tribunal] purports to sort out the facts injects a persistent taint that undermines the adequacy of the D.C. Circuit's review."70Brief Amicus Curiae of Arlen Specter at pg. 21. http://www.wilmerhale.com/files/upload/Boumediene_Specteramicus.pdf.. Last visited on June 23, 2008).
Because the DTA prohibited independent legal counsel, I disagree with Roberts' assertion that the combined review tribunal and judicial review by the Appeals Court satisfy whatever rights the detainee has, or that that procedure had to be exhausted. Considering their circumstances, until they have legal counsel, the detainees are only partially to blame for omitting the request for a DTA procedural review. For example, only trained legal counsel likely could have adequately explained the potential habeas corpus option to the detainee. Moreover, a detainee should be excused from requesting a review tribunal that has the earmarks of a Star Chamber. Because the DTA's infirmity has caused undue delay, the majority reasonably put the burden on the Appeals Court to cure the problem of leaked information. Presumably, the majority bypassed making specific suggestions because that would require pretrial conferencing, where both sides can present input.
The strongest precedent favoring the dissents is probably Ex Parte Quirin.71317 U.S. 1. There, U.S. Supreme Court held: "The Constitution...invests the President...with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war."72Id., at 26.
In Quirin, eight German men were commissioned by the German Reich in WWII to enter the U.S. discreetly and commit acts of sabotage. All of the men except one were non-citizens of the U.S. The men landed on the Long Island shore in uniform, but changed into civilian clothes. They also buried explosive devices, etc., on the beach for later retrieval. Before any of the men could commit sabotage, two of them willingly revealed the plan to the F.B.I. The other six men were apprehended. The German saboteurs admitted their enemy alien status and were assigned attorneys.