Tuesday, December 04, 2007

Gitmo Suicides and Boumediene

The Supreme Court hears oral argument tomorrow (that's Wednesday for those of you who don't read this blog at night) in the Boumediene case, which makes the timing of a story about suicide attempts at Gitmo. The question of how detainees are treated at Gitmo is not technically relevant to the constitutional issue in Boumediene, of course, but neither was the treatment of prisoners at Abu Ghraib strictly relevant to the 2004 decisions in Hamdi and Rasul. Nonetheless, the release of the Abu Ghraib photos so shortly after the oral arguments in those cases is widely credited with having seriously undermined the government's credibility and contributed to the results in those cases.

Likewise here, stripped of its most technical aspects, the issue in Boumediene is whether the Constitution entrusts to the detention, treatment and trial of aliens held outside the U.S. (assuming Gitmo counts as outside the U.S.) to the Executive, subject only to such judicial review as Congress, as a matter of grace rather than constitutional duty, chooses to provide. Evidence tending to show that prisoners are being held in miserable conditions has a natural tendency to make the Justices less willing to trust the Executive (although the government denies that they are, calling suicide attempts a matter of propaganda).

I doubt that this issue will be raised expressly in tomorrow's oral argument (which you can hear on C-Span radio at 11:15 am). My FindLaw column previews the issues and draws a connection with the DC gun case.

Posted by Mike Dorf