The Guantanamo Mess

[Geee]

National Review:


In 2008, in Boumediene v. Bush, a five-justice majority of the U.S. Supreme Court declared that habeas corpus jurisdiction extended beyond the shores of the United States. This, it said, was a matter of American constitutional law. The Boumediene ruling was unprecedented, not just in this country in modern times, but in the entire ancient history of habeas corpus jurisprudence. Boumediene ripped up centuries of settled law, leaving in its wake the title of my essay — a legal mess.

The Guantanamo habeas cases march on, hundreds of them, case by case, in our court and in the district court. Law is made; precedents set; judicial standards declared. Soldiers capturing combatants in the field may have to comply with judicially prescribed evidentiary requirements. Questioning of prisoners may have to adhere to some sort of judicial norm. Exclusionary rules may be enforced. Modes of questioning may not exceed proper bounds as judges see them. Evidence may have to be handled and preserved in certain judicially approved ways.

The short of it is that, in the peace and quiet of the federal courthouse at Third and Constitution Avenue, Washington, D.C., federal judges are making law — law that potentially affects the actions of our soldiers in the battlefields of the world, now and in the future, all in the name of the Constitution.

Consider one of the most basic issues: Who bears the burden of proof? Must the government show that it is properly holding the detainee? Or is it up to the detainee to show that he is being held improperly? Boumediene contains language that seems to support both positions. On the one hand, the Court said that habeas “entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” This sounds like the ball is in the detainee’s court.
But a few pages later we find the court stating that the “extent of the showing required of the Government in these cases is a matter to be determined.” This seems to contemplate some sort of showing required of the government. Assume that to be the case — as several of our cases do and as have the district judges. The question remains: What exactly is the nature of the government’s burden?

Reading and rereading Boumediene will not give you an answer. So how does a court go about resolving the question?

[Valin]

National Review:

 

 

Reading and rereading Boumediene will not give you an answer. So how does a court go about resolving the question?

 

 

Have no Fear Eric Holder/ANSWER/Code Pink/Move-On.org/Sean Penn will find the correct answer.