Chapter 1 Introduction What are the issues of the day?

Does the DTA Give the Reviewing Court Sufficient Authority?

What does this standard of review prevent the court from doing?

Has the detainee had an opportunity to fully develop the record during the administrative proceeding justifying detention?

Is this an adequate substitute for habeas corpus?

What about Exhaustion of Remedies?

Must the CSRT determination be appealed to Circuit court before the District court can hear the writ?

The cases before us, however, do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. The detainees in these cases are entitled to a prompt habeas corpus hearing.

Are the DTA and CSRT Processes Constitutional?

Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.

Why Should Congress and the Executive Care about the History of Habeas Corpus?

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

The Concurrence: Is this Precipitous Action?

After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.

The Dissent

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.

Is this true, even looking at Eisentrager?

What about the Delay?

If the majority were truly concerned about delay, it would have required petitioners to use the DTA process that has been available to them for 2 1/2 years, with its Article III review in the D.C. Circuit. That system might well have provided petitioners all the relief to which they are entitled long before the Court’s newly installed habeas review could hope to do so.

Why didn't petitioners do this?

Will the World End?

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

The Rejection of Exterritorial Reach

[A]ll available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown.

Why is not responsive to majority opinion?

How does the majority limit the opinion as regards general exterritorial reach?

Munaf v. Geren, 128 S. Ct. 2207 (2008)

Are these US citizens?

Where are they being held?

Who is holding them?

Does habeas corpus apply?

Do they want to be released?

Why not?

Why does this complicate a habeas corpus petition?

The Sovereign Nation Conflict

Who wants to prosecute the petitioners?

Do Americans get US due process in foreign courts?

“When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.”

Can habeas corpus be used to dodge foreign prosecution?

Freedom from Unlawful Transfer

The habeas petitioners nonetheless argue that the Due Process Clause includes a “[f]reedom from unlawful transfer” that is “protected wherever the government seizes a citizen.”

We disagree. Not only have we long recognized the principle that a nation state reigns sovereign within its own territory, we have twice applied that principle to reject claims that the Constitution precludes the Executive from transferring a prisoner to a foreign country for prosecution in an allegedly unconstitutional trial.

Does Torture Matter?

Petitioners contend that these general principles are trumped in their cases because their transfer to Iraqi custody is likely to result in torture. . . . Such allegations are of course a matter of serious concern, but in the present context that concern is to be addressed by the political branches, not the judiciary.

Who gets to make the transfer decision?

The Executive Branch may, of course, decline to surrender a detainee for many reasons, including humanitarian ones.