Boumediene v. Bush: The Suspension Clause and Guantanamo Bay
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I agree. Therefore, I address the two dissenters.



Justice Scalia argued that, because the U.S. was in an ongoing conflict with Islamic extremists, and Guantanamo Bay was a foreign sovereignty, the Suspension Clause did not apply to the detainees.


I side with the majority in disagreeing with Scalia's argument that Guantanamo Bay is a foreign sovereignty. The president's de facto war against a de facto nation necessarily created a doctrine of de facto sovereignty. The president's attitude seems to be that the terrorists' chosen nature and tactics required the DTA procedures. Regardless of one's opinion on that, using the formal sovereignty principle to thwart the separation of powers is an unaffordable precedent. Under Scalia's rationale, the political branches could escape accountability and dodge formal sovereignty simply by surrendering territory to another country and then leasing it back.50*73-74.



Chief Justice Roberts argued that because habeas corpus was procedural, the threshold question was whether the DTA protected whatever rights the detainees had. For one, did the review tribunals—coupled with the judicial review specified by the DTA—provide the "basic process" the court in Hamdi v. Rumsfeld (2004)51542 U.S. 507. said the Constitution afforded American citizens detained as enemy combatants?52*150.


Roberts also argued that, because the Appeals Court needed to consider the same information-dissemination problem that Congress considered, the court's procedures and modifications would resemble the DTA procedures anyway, spurning "fresh bouts of litigation."53*136, 139, 143, 150. The majority had merely shifted power to determine the procedures to the judiciary, a less competent branch for determining what procedures were needed to protect the American public.54*136.


"But the habeas corpus the Court mandates will...end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the...detention with the undoubted need to protect the American people from the terrorist threat—precisely the challenge Congress undertook in drafting the DTA. All that today's opinion has done is shift responsibility for those sensitive...decisions from the elected branches to the Federal Judiciary.55Id.

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Copyright © Erik L. Smith.