A few final thoughts on the topic of DC Circuit fidelity to Hamdi and Boumediene, for the three people still paying attention to us (hi Mom!). Steve’s reply to my intervention helps me better understand his position, and I’m swayed in part by what he has to say.
On the question of material support as a detention predicate (as an indicator of lack of fidelity), we clearly agree that Hamdi says no more and no less than that the AUMF authorizes detention for a Taliban member captured on the battlefield in Afghanistan while combat continues. Can that narrowness be read as reflecting a rule of construction for the AUMF in which claims of detention authority ought to be framed and examined carefully? Perhaps so. But I don’t think much else follows from the language Steve quotes. If there is tension here at all, it surrounds the distinct question of Hamdi’s reliance on LOAC to interpret the AUMF and the al-Bihani panel’s statement in dicta that LOAC ought not to be considered–something that certainly could impact the material support question, but which the Circuit itself seems to have addressed in the course of declaring that position to in fact be no more than dicta.
Steve’s clarification of his second point is fairly persuasive to me, leading me to think I misunderstood him before. I do agree, very much, that Kennedy in Boumediene is very much motivated by the concept that this situation requires something different from the habeas process than a scenario in which there was a full-blown criminal trial below and thus no need for fresh presentations of evidence (to take the feature that seemed especially troubling to the Court as it considered the adequacy of the CSRT system). The interesting question, though, is what precisely should follow from this. There is no doubt, notwithstanding al-Bihani, that the GTMO habeas process in at least some ways is, procedurally, more demanding than run-of-the-mill post-conviction habeas review. This is most obviously the case with respect to the point I mention above: the fact that the government must prove its case on the merits from scratch, with the petitioner free to present fresh evidence, etc. In short, I agree with Steve’s general point now that I properly understand it, and appreciate too that the rhetoric of al-Bihani in particular seems indeed to conflict with Boumediene in that sense. And I appreciate that this, in itself, is part of Steve’s point. But for me the issue is not the rhetoric but the actual practice, and as to that I’m not convinced that the actual procedural rules adopted by the Circuit can be said to be contrary to the expectations embodied in Boumediene (except perhaps Latif…).