Boumediene v. Bush: The Suspension Clause and Guantanamo Bay
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The DTA does not parallel Hamdi's criteria

As a whole, the DTA also lacks significant parallel to Hamdi's basic criteria. For example, Hamdi stated that a circumstance could arise requiring a rebuttable presumption in favor of the government's evidence that permits effective rebuttal once the government presented credible evidence. That differs critically from the DTA's requirement that "the government's evidence shall be presumed valid." Even if the Appeals Court can asses the constitutionality of the "use" of the Secretary's procedures and standards, the DTA, viewing its restrictions and presumptions as a whole, simply defaults to the "some evidence" rule deemed improper in Hamdi. To now say--after six years for some detainees--that the DTA and the Secretary's procedures are an effective substitute, and can all be cured by constitutional review in the Appeals Court anyway, merely sets the stage for an interminable cat-and-mouse game between the branches-- with time favoring the military. The Appeals Court will keep declaring the procedures invalid while the president will keep moving words around to achieve his desired result. The military may be best qualified to determine and assess procedures, but how many chances does the executive get before the court must step in and take the responsibility?


Right to legal counsel

Roberts argued that the majority misinterpreted the statutory scheme's apparent restrictions, further justifying exhaustion of the review tribunal remedy. But the detainee's right only to a "personal representative" is so fundamentally damaging to the detainee that Roberts' argument, even assuming his assertions as true, fail by it.


Limiting the detainee's counsel to a "personal representative" presumably prevents the detainee or his lawyer from knowing, and then disseminating, classified information that will aid the enemy. The president has ostensibly tried to give the detainee enough help to protect his rights while letting the military keep vital information classified.


I appreciate the compelling interest. But the sheer fundamentality of the need for effective legal counsel makes the government's interest and the detainee's right mutually exclusive in the government's view. A non-lawyer, litigating under the DTA--much less a foreign national who does not speak English natively and likely was raised in a totalitarian culture--cannot hope to present his evidence, or respond to the military's evidence, optimally without trained, devoted legal counsel. That holds especially in a proceeding where the military's need to withhold information can be an unverifiable excuse for withholding any evidence it chooses--even information aiding the detainee in a collateral way unclear to the military. Even without ill-intent in withholding information, the military cannot be the sole judge of how weighty the information might be to either side. Only under the most fortunate circumstances can a non-represented litigant, testifying half a world away from the arrest site, hope to rebut the foreign government's presumably valid evidence about his enemy combatant status.

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Copyright © Erik L. Smith.