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Interest and Perspective

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Wednesday, December 13, 2006


Trial judge gives in, OKs illegal military commission for Hamdan

I reported earlier on this blog about the unconstitutional suspension of the writ of habeas corpus which the Congress allowed and the President signed into law this past October. Now, the first ruling on this illegal action has been issued. The court acceded to the government and OKed the illegal and unconstitutional repeal of habeas corpus, and fairly begged to be reversed - this, after all, is the same judge who originally balked at the government's detention of Mr. Hamdan without due process. The Court helds that Congress' repealing its statutory grant of habeas jurisdiction did not unconstitutionally susped the writ, and also that no right to habeas found in the constitution will help Mr. Hamdan:

The Military Commissions Act and the briefs of the parties present three questions: (1) As a matter of statutory interpretation and construction, did Congress actually succeed in removing our statutory habeas jurisdiction over the detainee habeas cases? (2) If so, is the Military Commissions Act a constitutionally valid “suspension” of the writ of habeas corpus within the meaning of the Suspension Clause, U.S. Const. art. I § 9 cl. 2? (3) If not, and if a “constitutional” writ of habeas corpus survives the Military Commissions Act, does Hamdan have a right to seek such a writ? The answers to these questions are “yes” to number (1) and “no” to numbers (2) and (3).
This isn't over by a long shot. The court decides that the Military Commission Act is similar to the Anti-Terrorism and Effective Death Penalty Act in that both merely trim jurisdiction - the latter by limiting repeat petitions and the former by limiting the forum available. Next, the court decdes that Hamdan has no right to consitutitional habeas (apart from habeas rights the MCA abrogated) because he's not an American by citizenship or culture.

First, the decision that Hamdan has no right to constitutional habeas because he's not an American by citizenship or culture would seem to violate the spirit, if not the narrow holding, of _Rasul_ and merits reversal, despite the court's feeble attempt to distinguish that case. The judge has made out of whole cloth the rule that only "real" Americans get constitutional habeas; pointing to a few stale cases doesn't carry his point. It was also interesting that he didn't mention Korematsu at all.

Second, the court's discussion of suspension is just junk: basically, "Congress didn't unconstitutionally suspend the writ because if it did it would be unconstitutional because they didn't say there was a rebellion." Huhn???

The fact that Congress has been complicit in the President's tyranny should not deprive Mr. Hamdan of a real opportunity to challenge his detention.

Hamdan II, here we come.

UPDATE: Lyle Denniston at the Akin & Gump SCOTUSblog has the following interpretation; I believe we agree on the substance:

Here is the conclusion of Robertson's decision: "Congress's removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutiional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus. Hamdan's habeas petition must accordingly be dismissed for want of subject matter jurisdiction."

I have a more upbeat view regarding the suspension issue than you did, as I said in a comment on my blog.

As far as I can tell --- and note, i'm not a lawyer, just a layman who follows legal issues --- there is an accepted canon of statutory construction which says that, when it is possible to interpret a statute in a way which would render it unconstitutional *or* in a way which would not, a court is to use the interpretation which would not render it unconstitutional.

So, in this case: it would be one thing if Congress had explicitly suspended habeas --- the court would have had no choice. But it didn't, and so the court can choose to (a) interpret the law as a suspension (which would be obviously unconstitutional as there is no rebellion or invasion), or (b) interpret the law not as a suspension. They are required by canons of interpretation to do the latter.

Which doesn't say anything about the merits of the claim that the constitutional habeas protection doesn't apply to Hamdi; it merely means that the hand-waving dismissal of suspension is a normal part of how such a case is considered.
This comment has been removed by a blog administrator.
You really don't want to go there. The canons are indeterminate, and judges use them to justify reasoning by other means. As Prof. Llewellyn said, each canon of statutory interpretation has a converse and equally valid canon. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand L Rev 395 (1950), reprinted in 5 Green Bag 5 283, 297-308 (2002).

In addition, it's possible to interpret your argument as saying that courts should not (ever?) declare a statute unconstitutional. But that's what courts do.

The overriding concern is justice and due process - in America we don't lock people up and throw away the key without giving them an effective opportunity to oppose that detention in court that has the power to actually hear the case.
That deleted comment was mine. I don't censor this blog. I do remove posts by those spam-blogs, but that doesn't count.
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