:)

It isn’t exactly the same, Steve, but it certainly is substantially similar. The problem with Boumediene, for me, is that while it may represent one of the better cases for the “detainee rights” side on the spectrum of detainee cases (if “public safety” is the opposing pole), the rule that the detainee rights advocates hope to establish is really of use to them in other cases with worse facts for their cause, like al-Marri. The problem then comes in when there’s a cascade effect of this terrible rule — which perhaps should be limited to cases precisely like Boumediene’s — being applied to cases like al-Marri’s, which totally guts the government’s power to provide public safety precisely in those cases where it should have such power. It is rather obvious that the ultimate target is not American policy, but the impact American policy has on other interests around the globe. We have elections to settle that kind of stuff, not Supreme Court adjudications. But self-interested parties want leverage. It’s easier than winning an election.

In those cases, political pressure was applied by holocaust victim activist groups and their lawyers to members of congress and the clinton administration (and even some state/city governments, such as in New York), who at the time were debating whether to allow european financial institutions to enter lucrative US markets. The message to these banks and their country governments being “settle up generously with these claimants, or you’ll find getting regulatory approval very rough going”.

It bothered me to see the US legal system used to apply that kind of leverage against foreign governments and businesses.

Not the same thing as this habeas situation, but close enough to bother me.

http://howappealing.law.com/091707.html#028194

It is not the role of the courts to indirectly indict Israel for violating international law with military equipment the United States government provided and continues to provide.” So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in a decision issued today.

According to today’s ruling, the plaintiffs sued Caterpillar, Inc. in federal court in Seattle after their family members were killed or injured when the Israeli Defense Forces demolished homes in the Palestinian Territories using bulldozers manufactured by Caterpillar.

However, the logic of Amici’s argument leads exactly to the position that constitutional limitations to U.S. government action apply to foreign nationals in territory under foreign governance. There is no limiting principle in Amici’s argument that would not extend to American military forces operating in Iraq. Nor is one present in Petitioner’s brief. It is remarkable that American exceptionalism can be taken so far as to obliterate the sovereignty of foreign governments and invalidate foreign constitutions in the name of habeas corpus for a few detainees. I imagine if Petitioners are victorious it will not be long before the Institute of Justice is asserting Takings claims on behalf of Iraqis whose homes were bulldozed during an American raid. Call it the Kelo-Boumediene Surge.