Say Anything Blog

And it was about time, too:

During the bitter controversy over the military commission bill, which President Bush signed into law on Tuesday, most of the press and the professional punditry missed the big story. In the struggle for power between the three branches of government, it is not the presidency that “won.” Instead, it is the judiciary that lost.

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor “combatants” in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts.

Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention.

There’s been a lot of nonsense about “the death of habeas corpus” recently, but in order for us to believe that we have to also believe that habeas corpus was applied to war detainees in the past.  The problem is that it wasn’t, as the article above clearly indicates.

Here’s the part of the Military Commissions Act that has everyone upset:

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Clearly Congress is denying detainees in the war on terror access to habeas corpus relief, but before anyone flies off the handle let’s remember two things:

1. Article III of the Constitution clearly gives Congress the power the jurisdiction of the federal courts, meaning that Congress can tell the courts which cases they can and cannot hear by statute.
2. The Military Commissions Act clearly indicates that the courts cannot hear habeas corpus cases filed by aliens detained by U.S. forces.  It says nothing about denying habeas corpus to citizens.

The issue really breaks down this way: People who support the Military Commissions Act want to see the war on terror run by Congress and the President and not the court system and also want to see detainees in the war on terror treated as we’ve treated detainees in past wars.

People who don’t support the Military Commissions Act (see: pretty much all Democrats) want to give the terrorists Constitutional rights.

It’s as simple as that.