Comments on: Quick Reactions to Boumediene Oral Argument

By: Mourad Fleming

Mourad Fleming — Sat, 08 Dec 2007 00:01:20 +0000

See Rex v. Earl of Crewe, [1910] 2 K.B. 576 (Eng.) – Writ of Habeas Corpus denied in a case involving a person detained in Bechuanaland – however not on the ground that the reach of the writ did not extend there. See more generally the English/Commonwealth jurisprudence set out in the amicus brief of the Association of Commonwealth Lawyers. For the generality of common law jurisdictions, the issue is not the location of detention but whether there is a person amenable to the jurisdiction of the court who has the ability to order release.

By: Allan Ryan

Allan Ryan — Thu, 06 Dec 2007 15:34:22 +0000

Bechuanaland was a British colony in Africa until 1966, when it became the Republic of Botswana. Justice Breyer apparently used it as a reference to a remote place, a sort of Victorian Guantanamo.

By: Adam Pollock

Adam Pollock — Thu, 06 Dec 2007 08:52:41 +0000

Does anyone know what Justice Breyer meant by “Beckawannaland” ?

“But let’s image in England you had a statute and that statute said the government cannot hold an alien in Beckawannaland for six years without either charging them or releasing them.”
[page 47 of the transcript]

By: Stephen Jaros

Stephen Jaros — Wed, 05 Dec 2007 22:39:09 +0000

I agree that Kennedy’s question was the key, but to me it indicates he sees the law as providing adequate protection of detainee ‘rights’, such as they are, in the lower court proceedings as outlined by the law.

The Bush administration will win this one.

By: David Lachman

David Lachman — Wed, 05 Dec 2007 18:38:34 +0000

Marty, in response to Justice Kennedy’s question about DTA Â§ 1005(e)(2)(C), didn’t the D.C. Circuit determine in Boumediene that alien detainees held at Guantanamo have no constitutional rights to assert? Justice Breyer stated in the original denial of cert that “It is unreasonable to suggest that the D. C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the Circuit has already concluded they do not have.” So unless SCOTUS reverses that determination, and provides guidance to the Circuit Court (perhaps by adopting Justice Harlan’s “impractical and anomalous standard”), waiting to see how the DTA litigation plays out will not bring any clarity to the constitutional issues.

By: Jacques MacKenzie

Jacques MacKenzie — Wed, 05 Dec 2007 18:09:26 +0000

More importantly, Seth Waxman in rebuttal seized on Justice Kennedyâ€™s critical question, and, in my humble opinion, gave one of the more powerful and effective rebuttals Iâ€™ve ever seen â€” one that addresses not only Justice Kennedyâ€™s question, but also goes to the heart of why, at least for these detainees (if not, perhaps for any future detainees, who might be the beneficiaries of a revamped system), this system of indefinite detention is fatally flawed. Listen for it.

I thought this rebuttal was a waste of time.