Aphrael at Bound in a Nutshell has a good analysis of the latest round in the Hamdan v. Rumsfeld saga.
Hamdan, you may recall, is a Yemeni national picked up by the American forces in Afghanistan in November 2001. He was transported from there to Guantanamo Bay in 2002 and has been fighting his incarceration since. He was set to be tried in a military tribunal when he sued, claiming he couldn't be tried in a tribunal not approved by Congress. The Supreme Court agreed and sent his case back to the Court of Appeals who eventually sent it back to the judge now hearing the case.
In the meantime, Congress passed the Military Commissions Act, authorizing military tribunals for combatants like Hamdan and stripping these courts of habeas jurisdiction. The Bush Administration filed a motion to dismiss, which the judge has granted, but only after determining that the Military Commissions Act has limitations. According to Aphrael:
His opinion holds that the removal of jurisdiction only applies to aliens without some substantial connection to the United States: thus, for example, resident aliens, or people married to US citizens, would be entitled to file a habeas corpus petition were they held as enemy combatants, even if random foreigners picked up overseas would not be.
The habeas stripping created a huge furor among liberals who then claimed that we no longer recognized habeas rights in the U.S. and that any ol' American could be stripped of his rights to habeas corpus.
But that ain't so. Aphrael gives this analysis:
The argument, as I understand it, hinges on the difference between constitutional habeas corpus and statutory habeas corpus. The idea is that courts are granted the power to hear petitions for habeas corpus in two different ways: they have the power granted by the constitution to hear habeas petitions from people who have an inherent right to file them, and they have the power granted by statute to hear habeas petitions from people who do not have an inherent right to file them. What the Military Commissions Act does, the decision holds, is strip courts of the power to hear habeas petitions from those without an inherent right to file them; but, because there was no rebellion or invasion in 2006, and because Congress did not say that it was suspending the writ of habeas corpus, the constitutional right remains for those who have an inherent Constitutional right to file a petition for habeas corpus.
This is an arcane and somewhat abstract distinction: some people have an inherent Constitutional right to file habeas corpus petitions unless that right is suspended during time of rebellion or invasion; other people do not, but some of those who do not have the inherent Constitutional right had been granted a statutory right to do so. All Congress has done is remove that statutory right.
So who has an inherent right, and who doesn’t? Citizens do, clearly. The key holding of this decision is that the right is also possessed by aliens who have “resided, lawfully or unlawfully, on American soil”, or who have made themselves a part of our population. Notwithstanding his presence at Guantanamo Bay, the court says, Hamdan has not resided on American soil in such a way as to make himself a part of our population.
He's right about it being an arcane and abstract distinction, but I think it is quite important in the current War on Terror. What we are talking about is the difference between a person fighting us elsewhere in the world versus someone right here in the U.S. Aphrael finishes:
So, in short: the jurisdiction-stripping provisions of the decision don’t apply to citizens or those with a substantial connection to the country, but do apply to random foreigners picked up with no such connection. This gives the administration 95% of what it wants, and it will likely be satisfied.
I think he's got it right.
Jules Crittenden has more on the Hamdan case.
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