Analysis: Is Procedure or Substance (or Both) at the “Core” of the GTMO Habeas Cases?
Lyle’s post below continues his indispensable series on the procedural disputes that the district court judges in D.C. are about to (begin to) resolve in the GTMO habeas cases.
Once those questions are answered, however, there is an even more important question lurking, one on which the two sides appear to be even farther apart: What, exactly, is the scope of the authority Congress has conferred upon the President to use indefinite military detention? In other words, what is the proper definition of “enemy combatant”? That was the second question presented in Boumediene, and it was briefed by Paul Clement and Seth Waxman, but the Court did not reach it.
Since Boumediene, there have been at least three important developments on this question — cases that are bound to have an important influence on the way the trial courts in D.C. address this critical question:
– The opinions of the en banc Court of Appeals for the Fourth Circuit in al-Marri, which I discuss here. The precise holding in al-Marri is not directly pertinent to the GTMO cases, because the questions that split the judges in that case concerned the substance and procedure to be applied to the detention of a U.S. resident who was arrested and held in the U.S. Nevertheless, the five judges who concluded that al-Marri could be detained analyzed the broader question of the scope of the detention authorization in the AUMF — analysis that bears directly on the substantive question before the habeas judges in D.C. Judge Wilkinson’s opinion is of special note: He provides the most extensive discussion in any judicial opinion to date on the question, and even he (along with the other pro-Executive votes in al-Marri) concludes that the military’s dentention authority — the proper definition of “enemy combatant” — is far narrower than what the Bush Administration has been applying and arguing for. (Much more on this in my post.)
– Finally, a recent decision of the Israeli Supreme Court, construing an Israeli law authorizing detention of non-state enemy combatants, is also very important, because that court — like Judge Wilkinson, and like Justice O’Connor’s opinion in Hamdi — concludes that interpretation of the scope of the detention authority should be guided by the laws of war, which the Israeli court discusses in considerable detail.
I find it odd that the parties and judges in the GTMO habeas cases apparently have not proposed collective briefing on the substantive question, as well. Perhaps they all concur that the interpretation of the AUMF’s detention authority is better left to be determined by accretion, on a case-by-case basis, or by the court of appeals in the first cases that come before it on the merits.