Boumediene v. Bush: The Suspension Clause and Guantanamo Bay
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The Hamdi court bypassed the right to counsel question because, on remand, the detainee would have the right to counsel and he was already being granted unmonitored meetings with his lawyer.

 

My response

That last fact alone should show that the detainee having access to independent legal counsel is fundamental to the whole process. It also implied that a right to counsel is workable. (Roberts joined the majority opinion in Hamdi.) The Supreme Court in Hamdi would never have approved of limiting the detainee to a "personal representative," however impartial and helpful that person might theoretically be. But more on that later.

 

Hamdi addressed only whether detaining citizens falling within the definition of "enemy combatant" was authorized.66Hamdi, 542 U.S. 507, at II. An enemy combatant was an individual who "part of or supporting forces hostile to the United States or coalition partners in Afghanistan...engaged in an armed conflict against the United States."67Hamdi, 542 U.S. 507, at II. The Supreme Court confirmed that Congress had authorized the detention: "We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." (That should show that the Suspension Clause would be inapplicable to non-citizen detainees captured and detained in Afghanistan or Iraq. The Supreme Court decided Boumediene only under the fact that the detainees were detained at Guantanamo Bay.)

 

But the Hamdi court qualified the holding by saying that perpetual detention--as might practically occur in the indefinite nature of the current conflict--would not invoke the laws of war.68Id. The court saw the particular situation in Afghanistan to fall under the type of conflict that did invoke the laws of war.69Id. Thus, Hamdi does not stand for the proposition that all alleged enemy combatants detained at Guantanamo Bay are war prisoners in the original sense the laws of war intended. At the very least, the president cannot suspend habeas corpus for every alleged non-citizen enemy combatant seized from anywhere and detained at Guantanamo.

Footnotes
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Copyright © Erik L. Smith.