Boumediene v. Bush: Rights of Detainees in the View of the Supreme Court A panel discussion with Paul Wolfson, Jonathan Cohn, and Neal Katyal
Boumediene v. Bush, a set of consolidated cases to be argued before the US Supreme Court on December 5, raises the question of whether detainees at the U.S. Naval Base at Guantanamo Bay may challenge their detention through habeas corpus petitions. At this program, scheduled for one week after oral arguments before the Court, counsel for the parties and their amici will debate the issues raised in the case and comment on the questions raised by the Justices at the oral argument. The discussion will cover the effect of the Military Commissions Act of 2006, which purports to strip the federal courts of jurisdiction to hear habeas petitions from the detainees, and whether the detainees are entitled to a hearing on the merits- ASIL
Jonathan Cohn is a senior editor at The New Republic, where he has written about national politics and its influence on American communities for the past decade. He is also a senior fellow at the think-tank Demos and a contributing editor at The American Prospect, where he served previously as the executive editor. Cohn, who has been a media fellow with the Kaiser Family Foundation, has written for the New York Times, Washington Post, Newsweek, Mother Jones, Rolling Stone, and Slate. A graduate of Harvard University, he now lives in Ann Arbor, Michigan, with his wife and two children.
Neal Katyal, the Paul Saunders Professor at Georgetown University, focuses on Constitutional Law, Criminal Law, and Intellectual Property. He has served as Acting Solicitor General of the United States, where he argued several major Supreme Court cases involving a variety of issues, such as his successful defense of the constitutionality of the Voting Rights Act of 1965, his victorious defense of former Attorney General John Ashcroft for alleged abuses in the war on terror, his unanimous victory against 8 states who sued the nation's leading power plants for contributing to global warming, and a variety of other matters. As Acting Solicitor General, Katyal was responsible for representing the federal government of the United States in all appellate matters before the U.S. Supreme Court and the Courts of Appeals throughout the nation. He served as Counsel of Record hundreds of times, and orally argued 15 U.S. Supreme Court cases, as well as numerous others in lower courts. He was also the only head of the Solicitor General's office to argue a case in the U.S. Court of Appeals for the Federal Circuit, on the important question of whether certain aspects of the human genome were patentable.
While teaching at Georgetown, Katyal won Hamdan v. Rumsfeld in the United States Supreme Court, a case that challenged the policy of military trials at Guantanamo Bay Naval Station, Cuba. The Supreme Court sided with him by a 5-3 vote, finding that President Bush's tribunals violated the constitutional separation of powers, domestic military law, and international law. As former Solicitor General and Duke law professor Walter Dellinger put it "Hamdan is simply the most important decision on presidential power and the rule of law ever. Ever." An expert in matters of constitutional law, Katyal has embraced his theoretical work as the platform for practical consequences in the federal courts.
Katyal previously served as National Security Adviser in the U.S. Justice Department and was commissioned by President Clinton to write a report on the need for more legal pro bono work. He also served as Vice President Al Gore's co-counsel in the Supreme Court election dispute of 2000, and represented the Deans of most major private law schools in the landmark University of Michigan affirmative-action case Grutter v. Bollinger (2003). Katyal clerked for Supreme Court Justice Stephen Breyer as well as Judge Guido Calabresi of the U.S. Court of Appeals. He attended Dartmouth College and Yale Law School. His articles have appeared in virtually every major law review and newspaper in America.
Katyal is the recipient of the very highest award given to a civilian by the U.S. Department of Justice, the Edmund Randolph Award, which the Attorney General presented to him in 2011. The Chief Justice of the United States appointed him in 2011 to the Advisory Committee on Federal Appellate Rules. Additionally, he was named as One of the 40 Most Influential Lawyers of the Last Decade Nationwide by National Law Journal (2010); One of the 90 Greatest Washington Lawyers Over the Last 30 Years by Legal Times (2008); Lawyer of the Year by Lawyers USA (2006); Runner-Up for Lawyer of the Year by National Law Journal (2006); One of the Top 50 Litigators Nationwide 45 Years Old or Younger by American Lawyer (2007); and one of the top 500 lawyers in the country by LawDragon Magazine for each of the last five years. He also won the National Law Journal's pro bono award in 2004.
Katyal has appeared on every major American nightly news program, as well as in other venues, such as the Colbert Report.
Nancy Perkins has a diverse international practice, including arbitration and trade litigation, regulatory counseling, and legislative work. She has litigated disputes before the International Centre for the Settlement of Investment Disputes ("ICSID") and the GATT/World Trade Organization ("WTO"), including the first case ever brought under the WTO dispute settlement system. She also has worked on antidumping and countervailing duty cases, proceedings under the Generalized System of Preferences, and matters involving Sections 201 and 301 of the U.S. trade laws. She has assisted several foreign governments in the negotiation of treaty provisions, and has counseled numerous clients with respect to export control and customs regulations, the Exon-Florio statute, FOCI matters, the Foreign Corrupt Practices Act, the NAFTA, and antitrust, tax, and other aspects of foreign direct investment in the United States. Ms. Perkins is the Chair of the International Law Section of the D.C. Bar, Treasurer of the American Society of International Law ("ASIL"), and a member of the Editorial Advisory Committee of International Legal Materials, published by the ASIL. She joined Arnold & Porter in 1988, following a clerkship with the Honorable Eugene H. Nickerson in the District Court for the Eastern District of New York. She is a member of the Bars of both Pennsylvania and the District of Columbia, and is a member of the American Law Institute.
Mr. Wolfson has argued 19 cases in the United States Supreme Court and has also argued before six federal courts of appeals. Before joining the firm, Mr. Wolfson worked for eight years in the Solicitor General's Office, where he received the Attorney General's Distinguished Service Award for "exemplary representation of the United States before the Supreme Court."
1. Rasul was a statutory holding.
2. It was cut down by the DTA and the MCA.
3. Eisentrager is controlling on constitutional habeas.
4. The petitioners in Eisentrager did not have recourse to German law in occupied Germany.
5. Cohn has the stronger legal argument, and wipes the floor with Katyal.
Of course the ASIL pukes would like the Court to rule for Boumedienne. It complicates things, and it means more work for IL-types, litigating just exactly what is required by Art. 5 tribunals in expanded habeas proceedings in federal court. Further, petitioners make a lot of hay about the arbitrary territoriality of Guantamano as regards constitutional habeas. This is disingenuous, considering that before Guantanamo, captured enemy aliens were simply held at such places as Bagram air base - where ostensibly, constitutional habeas would not extend, given Neal's 'limited' position. Why should the scope of territorial jurisdiction be any less arbitrary then? For purposes of con. habeas, Bagram would just be as unreachable a black hole as Guantanamo. What then?
One suspects that petitoners' incremental strategy would be to go after that too, which makes Jonathan's point all the more trenchant.