nationalsecuritylaw forthcoming scholarship

* forthcoming scholarship

Of Suspension, Due Process, and Guantanamo: The Reach of the Fifth Amendment after Boumediene and the Relationship Between Habeas Corpus and Due Process

University of Pennsylvania Journal of Constitutional Law, Forthcoming

Joshua Alexander Geltzer
Yale University – Law School

This Article examines the surprisingly under-explored relationship between habeas corpus and due process, using ongoing detention at Guantanamo Bay as inroads into the broader topic. The Supreme Court’s recent decision in Boumediene v. Bush held that the Constitution’s Suspension Clause applies to detainees at Guantanamo, thus constitutionally protecting their filing of habeas petitions. Since that decision, the Court of Appeals for the D.C. Circuit has affirmed its pre-Boumediene conclusion that the Due Process Clause does not apply to Guantanamo detainees. This unusual severing of the typically dual protections of habeas review and due process raises the interesting question of how those two constitutional provisions relate. This Article sets out five conceptions of the relationship between habeas and due process, then shows how each of those conceptions connects to a particular reading of Boumediene. The Article concludes that, if and when the issue of the applicability of due process to Guantanamo reaches the Supreme Court, the Court’s conclusion may well come down to Justice Kennedy’s vote, which is likely to hinge on whether he applies to the issue the same “impracticable and anomalous” test that he utilized when writing the majority opinion in Boumediene or whether he approaches the issue from the separation-of-powers perspective that he also emphasized in that decision. This Article finds that which approach emerges as dominant has implications beyond Guantanamo: it is likely to suggest a broader understanding of the still-uncertain relationship between the Suspension and Due Process Clauses. Hence, the Article reveals that while the opinion in Boumediene initially appears susceptible to multiple, complementary readings, digging deeper so as to explore those readings’ implications for the underlying issue of the relationship between habeas and due process reveals distinct tensions, as the different readings of Boumediene suddenly begin to pull in different directions.

"The Protection of Civilians in War: Non-Combatant Immunity in Islamic Law"

DR. MUHAMMAD MUNIR, International Islamic University Islamabad (IIUI)
Email: mmunir3

Islamic law makes a distinction between combatants (those who fight) and non-combatants (those who do not fight) and allows fighting with the former and protection to the latter. The Prophet (PBUH) and his four successors have been issuing instructions to their armies against the killing of civilians. Modern Orientalists rely on Khudduri who has relied on Tabari and who in turn has relied on Waqidi to present a very distorted version of Islamic jus in bello. The work critically evaluates Tabari’s methodology.

"The Reach of the Writ: Boumediene v. Bush and the Political Question Doctrine"

Georgetown Law Journal, Vol. 99, No. 3, p. 869, 2011

ZACHARY M. VAUGHAN, Georgetown University Law Center
Email: zvaughan

This Note defends Justice Kennedy’s majority opinion in Boumediene v. Bush against two separate lines of attack. First, this Note attempts to rebuff scholarly commentary that tries to read into Boumediene a formalist holding about the territorial reach of the Suspension Clause that is simply not there. Second, this Note examines the question of whether the political question doctrine should restrain judges in the first instance from making determinations about the territorial reach of the Suspension Clause. Part I gives an overview of the political question doctrine from its origins through its refinement in Baker v. Carr and examines a few modern applications of the doctrine. Part II examines Justice Kennedy’s majority opinion in Boumediene, the extent to which the political question doctrine constrained the Court in that case, and the steps Justice Kennedy took to work around the doctrine in his opinion. Part III examines Judge Bates’s opinion in Al Maqaleh v. Gates and its application of Boumediene to detainees at Bagram and shows that, despite scholarly commentary to the contrary, Judge Bates’s reading of Boumediene was correct. Finally, Part IV argues that, although Justice Kennedy failed to address Baker v. Carr and its progeny in Boumediene, his opinion demonstrates that the question of whether the Suspension Clause extends to places like Guantanamo and Bagram is one that courts may address.

Interest Balancing vs. Fiduciary Duty: Two Models for National Security Law

German Law Journal, Forthcoming

Evan Fox-Decent
McGill University – Faculty of Law

Evan J. Criddle
Syracuse University College of Law

The metaphor of the balance has long dominated national security law. While judges and policymakers have debated the relative weight states should give to civil liberty concerns and public security concerns in various contexts, few have questioned the general balance metaphor that structures these debates. Indeed, several legal scholars have argued that the balance metaphor is the only tenable model for addressing national security crises.

This brief essay examines two cases originating in Germany, which defy the interest-balance model. In the first case, the Federal Constitutional Court of Germany declared unconstitutional legislation authorizing the military to intercept and shoot down hijacked passenger planes that could be used in a 9/11-style attack. In the second case, the European Court of Human Rights held that German law enforcement authorities could not abrogate the prohibitions against torture or cruel, inhuman, and degrading treatment even under circumstances where the life of an innocent child appeared to be at stake. Each of these decisions emphatically rejects the interest-balance model by declaring that human rights are not mere interests that states may weigh against other interests during emergencies.

We argue that these two cases are best understood as reflecting an alternative model for the relationship between state authority and human rights during national emergencies. According to this model, human rights are conceived in relational and legal terms as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee their subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary model posits that human rights are not merely individual interests that can be offset by other societal interests. Instead, human rights are legal rights that protect persons’ freedom and dignity (not interests or welfare), placing states under correlative legal obligations to protect those rights. By emphasizing dignity rather than interests, and secure and equal freedom rather than social welfare, the fiduciary model offers an alternative to the interest-balance metaphor that currently dominates national security law.

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