Interest and Perspective

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.

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."