I’ve just started following a number of blogs specializing in international law and national security issues. I’m impressed at the vigor with which some legal scholars have taken to blogging. As a thinker attuned to the laws of armed conflict/international humanitarian law, but not trained in law as such, I’m also grateful for the translations they provide from legalese to normal academickese so the rest of us can keep up. From Bobby Chesney at National Security Advisors:
Two momentous decisions this morning. In Boumediene, the Supreme Court holds 5-4 that (i) GTMO detainees are protected by the Suspension Clause and (ii) the Detainee Treatment Act review system does not provide an adequate substitute for habeas because it does not authorize the DC Circuit to order detainees to be released, does not allow detainees to argue that their detention exceeds the scope of the executive’s detention authority, and does not allow presentation of new evidence.
Meanwhile, a unanimous Supreme Court holds in Munaf that a US citizen held in US military custody in Iraq, under color of the authority of the MNF-I, has a right to seek habeas relief but that habeas jurisdiction does not empower courts to forbid the transfer of such persons to Iraqi criminal custody. The fact that the Iraqi criminal process does not satisfy US constitutional requirements is not relevant, the court observed. More significantly, the court also held that judges should not second-guess the State Department’s determination that such persons will not face an undue risk of torture upon transfer. That aspect of the holding has implications for the larger issues associated with extraordinary rendition in general and GTMO transfers in particular.
In short, a big defeat for the administration in Boumediene, but a big victory for it in Munaf.
Opinio Juris is very pleased to announce an “insta-symposium” to discuss the decision. We have an amazing line-up of guests, including Geoff Corn (South Texas), Eric Freedman (Hofstra), Paul Halliday (Virginia), Chimène Keitner (Hastings), Jenny Martinez (Stanford), Michael Newton (Vanderbilt), Deborah Pearlstein (Princeton), Patrick Philbin (Kirkland & Ellis), David Scheffer (Northwestern), Beth Van Schaack (Santa Clara), Steve Vladeck (American), and Ted White (Virginia).
At time of writing, a number of posts have already appeared. Worth following.