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At the risk of boring readers who have long-since grown tired of this exchange, let me just offer three quick responses to Bobby's thoughtful intervention in the back-and-forth between Ben and me on whether the D.C. Circuit really did actively subvert Hamdi and Boumediene: I. With regard to Al-Bihani and detention based upon material support, Bobby is basically right--the crux of my (cryptic) point in my post from this morning was that material support blatantly ignores IHL. But let me also flag this language from Justice O'Connor's plurality opinion in Hamdi (emphasis added): "There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban . . . are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." Given the care and narrowness with which the Hamdi Court approached the scope-of-detention-authority question, I think one can fairly criticize the al-Bihani panel for not taking Hamdi's cautious approach at all seriously in (preposterously) seizing on the MCA as the locus of detention authority, especially given the more coherent, narrower alternatives that had already been articulated by various district court judges (and on which Judge Williams relied in his concurrence). No, the Supreme Court gave no further content to the scope of the AUMF, but, contra al-Bihani, it said more than nothing on that subject in Hamdi... II. Bobby next writes that "It’s not clear to me that either Hamdi or Boumediene can be read to clearly establish an expectation that ordinary post-conviction habeas rules would be applied in the GTMO context." Here, I respectfully (but strongly) disagree. As I documented in detail in this post a while back, Judge Brown quite clearly inverts Justice Kennedy's language from Boumediene with regard to the relevant procedural baseline for the scope of these habeas cases. Kennedy's whole point was that more is required in executive detention habeas cases, because there has been no underlying proceedings by a court of record. If anything, this is one of the best examples--in my view--of the underlying subversion thesis, albeit one that has been thoroughly underappreciated. III. As for the evidentiary standard issue, I wholeheartedly agree with Bobby that "there is rhetorical tension, but no tension in the actual practice." Just to be clear, the point of this morning's post was to respond to Ben's query about specific examples of the D.C. Circuit refusing to take the Supreme Court seriously. Whether it's mattered in practice or not, isn't this another one? * * * I really have said too much already. Let me just close on this note: I do believe, at a fundamental level, that the D.C. Circuit's hostility to the Supreme Court vis-a-vis Guantanamo has not been as pronounced as many (including the editorial page of the New York Times) have argued, largely because it has been the work of a small minority of its judges, and not the whole court. I also believe that Hamdi and Boumediene left a fair amount of maneuvering room to the lower courts, and we can criticize how they chose to exercise that discretion without suggesting that they thereby abused it. But I also believe that there have been at least some episodes of well-documented abuses of that discretion in the form of hostility to the Court's prior work, and I've done my best to document them (in the Seton Hall piece more so than in this morning's reply to Ben). To my mind, each example serves as a counterweight to the otherwise compelling views of those, like Ben, who would absolve the D.C. Circuit of its role in watering down Boumediene--placing more of the blame on the Justices for not doing enough to define the rules of the game in the first place...
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
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