Hamdan question Forum

[zanda]

Why does Kennedy proceed to consider whether the DTA is an adequate substitution for the writ? Shouldn't the first part of the opinion, finding an entitlement to the writ, suffice?

[zanda]

Bueller?

I've been thinking about it and the only thing I can come up with is that the writ isn't a positively granted right. Instead we infer it negatively from the Suspension Clause. Thoughts?

[vanwinkle]

Why does Kennedy proceed to consider whether the DTA is an adequate substitution for the writ? Shouldn't the first part of the opinion, finding an entitlement to the writ, suffice?

I think the idea is that if the President was supplying something substantially equivalent to the writ, then the writ hasn't really been suspended and the Suspension Clause isn't triggered. That is, while you have an entitlement to the writ, the Constitution only applies if it's being denied improperly, and something that is in substance rights equivalent to the writ isn't really denying you your rights.

This gets to one of the deeper constitutional law questions: How much latitude do you give for substance? Kennedy is okay with putting substance over pure form. Scalia definitely isn't; he objects (if I remember right) because Gitmo isn't a true sovereign territory, but Kennedy finds it substantively equivalent and that's enough for the law to apply to it.