Boumediene Opinion

by Jonathan H. Adler

It was widely anticipated that the federal government would lose Boumediene, but the opinion is still a significant loss for the Bush Administration.  Based on a quick perusal of the opinion, it appears that Justice Kennedy’s opinion for the Court holds that the Section  7 of the Military Commission unconstitutional.  According to the Court, Gitmo detainees have habeas rights that can only be suspended through a valid invocation of the Constitution’s suspension clause.  The Court further holds that the procedures set up by the Detainee Treatment Act are not an adequate substitute for review of habeas claims in Article III courts.  Therefore, the Court concludes, the denial of federal court jurisdiction over detainee habeas claims amounts to an unconstitutional suspension of the detainees’ habeas rights.  The Chief Justice and Justice Scalia both have lengthy dissents.

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