High Value Target HVT / Political Assassination

[OccamsRazor]

Mike - as usual, a great analysis. A couple of things to add on:

1. Just for clarification, Boumediene v. Bush has changed the game. It held, in short, that the writ of habeas corpus extends to (1) those in held at Guantanamo Bay, and (2) a CSRT was not an adequate substitute for a true habeas hearing (even though it was modeled after Sandra Day O'Connor's suggestion in her plurality concurrence in Hamdi v. Rumsfeld). They justified the extension by stating that Guantanamo, while outside the borders of the physical sovereignty of the United States, was still under the Constitution's penumbra due to de facto jurisdiction.

2. It should be noted, and this is a topic of interest to me as I currently have an article under review on this topic, that the habeas hearing these alleged enemy combatants have a right to is not the one that a U.S. civilian would get. It is far less. For example, hearsay (which makes up a majority of the government's case against the detainee) is admissible, even though it is usually prevented from entering as evidence in a typical habeas hearing (with many exceptions, of course). Secondly, the burden of proof is that "a preponderance of the evidence" must show that the detainee is an enemy combatant. In a regular court, the punishment of imprisonment would demand "beyond a reasonable doubt" (much higher than a "preponderance"). These changes were made to attempt to facilitate the use of intelligence (perfectly satisfactory for a LOW determination of guilt, but problematic when applied to ROL).

3. Why are there these differences? Because the Supreme Court said that there could be, essentially.

Felker, Swain, and Hayman stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ.

As such, there is, ostensibly, room for the District Court to be flexible in its creation of the procedures and format of the habeas hearings, which hopefully allow for a reasonable deliberation. It's my argument, despite the changes in #2, that they have failed considerably, leaving the government in a lose-lose situation when prosecuting detainees. Considering the shelf life of this topic (it changes pretty rapidly), I'm considering giving up on trying to get the article published in international security journals (the process takes forever), and submitting it to SWJ, but I'm still undecided.

Bill - I'm glad to be joining the club. I come from a family of warfighters, and, while I can't claim to understand the way of life and sacrifice, I feel that I at least know what I don't know, and don't presume anything otherwise.

davidbfpo - Good to see another IISS member. Have you ever gone to any of the conferences?