Tuesday, June 17, 2008


Ace of Spades:
And So It Begins: Terrorist Who Killed US Soldier in Grenade Attack Petitions for Release -- Because He Wasn't Read His Rights
Against that backdrop [the Boumediene decision], navy Lt.-Cmdr. Bill Kuebler, Khadr's military-appointed defence lawyer, will use Wednesday's hearing to argue that the entire case against the Toronto-born accused terrorist should be thrown out on grounds U.S. authorities have never told him of his rights.
Which "rights" would those be?

The Supreme Court punted that issue to a district court judge, who will take six months to craft an opinion, which will then have to be reviewed by an appellate court, and then their decision will have to be reviewed en banc (by all members of the court, not just the three judges assigned to the case; big juicy cases are usually reheard en banc), and then, sometime thereafter, the Supreme Court will grant certiorari, find quibbles here and there with the lower courts' various rulings (as they always do), and then remand the case again to lower courts asking them to take another stab at the question which will hopefully, one day, pass muster and be recognized as the prevailing "constitutional" law by the Supreme court.

We won't know definitively if enemy captures have to be Mirandized for at least a year. More difficult questions will take much longer. (I hope the Miranda question will be an easy one for the court, but who can know, given Justice ... Kennedy's continuing "evolution.")
I find Boumediene increasingly interesting.

Properly considered, Boumediene ought be about which courts are the most effective and humane judges of enemy combatants: federal courts or the CSRT? CSRT (Combatant Status Review Tribunal) has power to review pleas for release, and to release defendants who merit release. The District Court of the District of Columbia serves as an overseeing court to the CSRT, to ensure CSRT fairly follows its proceedures.

Chief Justice Roberts accuses the majority of misunderstanding the function of CSRT:
[The majority’s] comment makes sense only if the CSRTs are incorrectly viewed as a method used by the Executive for determining the prisoner’s status, and not as themselves part of the collateral review to test the validity of that determination.[…] The majority can deprecate the importance of CSRTs only by treating them as something they are not.
The judicial systems of other respected nations differ from the U.S. judicial system in many respects - yet defendants who pass through those systems are considered to have received fair trials. An enemy combatant need not specifically pass through the U.S. civilian judicial system in order to have received a fair trial - and yet: that is effectively what the SC majority is saying.

I suspect this SC majority wilfully misunderstood the function of the CSRT. I suspect - at their core - this SC majority does not recognize the CSRT as a judicial institution which is superior to federal courts in any matter - including in the matter of judging enemy combatants.


For a fuller understanding of Justice Roberts' point, read his dissent, which is found on pp 90-92 of Boumediene v Bush. His language is understandable, even for a layperson.

No comments: