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Boumediene v. Bush and Rights of Detainees

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enthymeme Avatar
Posted: 04.20.08, 01:49 AM
1. Rasul was a statutory holding. 2. It was cut down by the DTA and the MCA. 3. Eisentrager is controlling on constitutional habeas. 4. The petitioners in Eisentrager did not have recourse to German law in occupied Germany. 5. Cohn has the stronger legal argument, and wipes the floor with Katyal. Of course the ASIL pukes would like the Court to rule for Boumedienne. It complicates things, and it means more work for IL-types, litigating just exactly what is required by Art. 5 tribunals in expanded habeas proceedings in federal court. Further, petitioners make a lot of hay about the arbitrary territoriality of Guantamano as regards constitutional habeas. This is disingenuous, considering that before Guantanamo, captured enemy aliens were simply held at such places as Bagram air base - where ostensibly, constitutional habeas would not extend, given Neal's 'limited' position. Why should the scope of territorial jurisdiction be any less arbitrary then? For purposes of con. habeas, Bagram would just be as unreachable a black hole as Guantanamo. What then? One suspects that petitoners' incremental strategy would be to go after that too, which makes Jonathan's point all the more trenchant.