West Law Report


An article of Richard H. Fallon, Jr. and Daniel J. Meltzer in Harvard Law Review (Jun 2007) (.pdf) (84 pages):

This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within the habeas corpus jurisdiction of the federal courts. Analytically, it develops a clear framework for sorting out the tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common lawike approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies.
The Article also takes substantive positions on a number of important issues. In the jurisdictional domain, it defends the Supreme Court controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantanamo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantanamo Bay from challenging their detention or conditions of confinement before a civilian court.

With respect to substantive rights, the Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why the constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens?detention as enemy combatants when they are seized in the United States, away from any theater of combat. Finally, the Article analyzes some of the most important procedural and scope-of-review questions likely to come before habeas courts.

Hamdan v Rumsfeld: The legal academy goes to practice

Posted in Hamdan v Rumsfeld, Harvard Law Review (Article) by mrkooenglish on May 20, 2008

In the paper (Harvard Law Review, Vol 120, Nov 2006) (.pdf) (59 pages), Professor Neal Kumar Katyal discusses:

Like any excluded group, practitioners have begun disparaging the theoreticians in return. We are witnessing one of the most significant developments in the history of American law: the majority of professors on many law faculties are now specializing in areas that are of no obvious relevance to their students’ activities upon graduation.

This Comment uses Hamdan to illustrate why the disparagement of theory is partially wrong. By examining the litigation of the case, it demonstrates some of the benefits of theory to practice. This Comment oscillates, with any luck instructively, between Hamdan’s implications for legal education and its implications for the law.

Part I discusses how broad theoretical research sheds light on the litigants’ strategic moves. Part II explains the implications of the Hamdan decision. Part III looks to the future of both the bar and the academy.

Hamdan v. Rumsfeld: Implications for the Geneva Conventions

Posted in Geneva Conventions, Guantánamo, Hamdan v Rumsfeld by mrkooenglish on May 20, 2008

In the paper (Harvard Human Rights Journal, Vol 20, Spring 2007) (.pdf) (9 pages), Regina Fitzpatrick discusses:

Last term, in Hamdan v. Rumsfeld (2006), the Supreme Court of the United States held that the military commissions convened by the Bush Administration to try non-citizen terror suspects could not proceed as constituted because they lacked congressional authorization and violated both the Uniform Code of Military Justice (“UCMJ”) and the Geneva Conventions. This Recent Development focuses on the Court’s analysis and application of the Geneva Conventions, the most comprehensive codifications of international humanitarian law.

Hamdan has significant, and potentially dangerous, ramifications for international norms in foreign policy practice and American jurisprudence during—and beyond—this interminable “war on terror.” If the dissent’s view in Hamdan were to prevail,3 the applicability of the Geneva Conventions would be notably limited, their domestic enforcement would be left solely to those responsible for violating them, and the customary international law they embrace could be altered.

Justice: Gitmo Grievances

Posted in Guantánamo, Hamdan v Rumsfeld by mrkooenglish on May 20, 2008

Newsweek magazine reported:

Assigned to try detainees in the War on Terror, three former Guantánamo prosecutors now say the military-commission system is badly damaged.

For example:

A clue may lie in the troubling account of Col. Morris Davis, the chief military prosecutor until last October. Colonel Davis thought he had the evidence to prosecute. But he was not willing to use Qahtani’s alleged confessions because he knew from a Defense Department report and other official sources that the prisoner had been abused and degraded at the U.S. detention facility at Guantánamo Bay.

What is Hamdan v. Rumsfeld (2006)?