Daily Kos: The Boumediene Dissent: An Analysis

by Categorically Imperative
Thu Feb 22, 2007 at 03:36:08 PM PST

Those of you who read my earlier post on the majority opinion handed down by the D.C. Circuit in Boumediene v. Bush already know that I found the majority's reasoning unpersuasive, to say the least. Unfortunately, the dissent is not much better, though it does have the laudable attraction of having come to the correct conclusion. Especially given the numerous flaws in the majority opinion, however, the dissent offers a weak argument for what should be the stronger position and at times is not only weak, but counterproductive.

The Opening Argument: A Non Sequitur

The opening portion of the dissent (Pages 1-9) is probably the most unhelpful, as it makes an argument that is both constitutionally suspect and ultimately undermines the dissent's position. The argument is a response to the majority's assertion that the detainees have no constitutional rights because they have no presence or property in the United States. To attack that assertion, the dissent attempts to distinguish the Suspension Clause from the Bill of Rights by asserting that the former does not give rise to rights but rather is a limitation on Congressional power.