A Dissentious "Debate": Shaping Habeas Procedures Post-Boumediene*

By Pogge, Calin C. | Texas Law Review, April 2010 | Go to article overview

A Dissentious "Debate": Shaping Habeas Procedures Post-Boumediene*


Pogge, Calin C., Texas Law Review


I. Introduction

The United States' formulation of detention policy for Guantanamo Bay enemy combatants has not exactly taken the path of least resistance. The rules governing military detentions at Guantanamo have emerged as the product of an expansive dialogue, vacillating and at times contentious, between the Executive, Legislative, and Judicial Branches. In Boumethene v. Bush,1 the latest chapter in this ongoing discussion, the Supreme Court held by a vote of five to four that Guantanamo detainees possess a constitutional privilege of habeas corpus.2

But the widespread clamor over whether Boumethene's brazen holding was the "correct" result has overshadowed a quieter but equally significant - and indeed, equally contentious - conversation that also was brought about by Boumethene: the Washington D. C. District Court's endeavor to design appropriate procedures to govern the Guantanamo detainees' habeas petitions. At first glance, the minutiae of habeas procedures may appear immaterial when compared to the more comprehensive constitutional issues confronted by the Boumethene Court. After all, the Court addressed the details of the proceedings only in passing: "We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees' habeas corpus proceedings."3

This Note demonstrates that to the contrary, the D. C. District Court's post-Boumethene mandate to design procedures for the Guantanamo detainee habeas proceedings, as well as its adjudicatory role in the disposition of these proceedings, substantially impact the interbranch national-security dialogue. And so far, the rumblings at the district court level have been anything but uneventful.

First, I must place this dialogue within its proper context. Part II provides this frame of reference by contouring the key exchanges between the Judicial, Legislative, and Executive Branches since the commencement of the War on Terror, which cumulatively have shaped the United States' noncitizen-detention policy to this point. By examining these decisions, and the reactions to these decisions, I find that Boumethene buttresses, rather than introduces, a trend of judicial involvement in the post-9/1 1 national-securitypolicy conversation.4 Part III presents a narrative of the D.C. District Court's development of habeas procedures from Boumethene to the present, focusing specifically on the two procedural issues on which the judges have been most divergent: the disclosure of exculpatory evidence and the regulation of discovery. An analysis of the judges' case management orders (CMOs), amended CMOs, and nondispositive orders illuminates the mini-dialogue that has accompanied the crafting of these procedures from the outset. Lastly, Part IV comments on the D.C. District Court's recent activity through a dialogic lens and posits that congressional involvement, particularly in the form of statutory habeas procedures, would ensure a more interbranch, systemically balanced construction of U.S. detention policy.

II. The Interbranch Guantanamo Detention Dialogue from Rasul to Boumethene

The current fractious national debate over U.S. detention policy at Guantanamo Bay stands in stark contrast to the unified support the government received for its military initiatives in the aftermath of 9/1 1. Less than a week after the Twin Towers collapsed, Congress enacted and the President signed the Authorization for Use of Military Force Against Terrorists (AUMF).5 This joint resolution granted the President broad authority to "use all necessary and appropriate force" against "nations, organizations, or persons" who were involved in the 9/1 1 attacks or who harbored those involved.6 The resolution passed overwhelmingly - by 98 to 0 in the Senate7 and 420 to 1 in the House.8 No legal objections hindered its passage, and public opinion expressed sweeping approval of the initiatives.9

Of course, the United States' counterterrorism operations resulted in the apprehension of suspected terrorists, and in early 2002 the first terrorism detainees were taken to Guantanamo Bay, Cuba. …

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