Follow by Email

Friday, September 29, 2006

Disturbed and Uncertain

I was going to do a passionate denunciation of the recently passed detainee bill, but I'm now not sure that what I thought was its most outrageous aspect is actually in there. Nonetheless, there is plenty I either dislike or am queasy about. Although the question of how to interrogate suspected terrorists, and what to do with them afterwards, is not easy either conceptually or morally (or legally).

I'll post more analysis when I have time and energy, but on the subject of the statute's removing federal court habeas corpus jurisdiction and otherwise restricting federal judicial review:

--I gather the issue of when non-citizens have habeas corpus rights may be complex, or maybe I just haven't seen the right sources explaining it.

--Whatever the scope of habeas corpus, the Constitution says it can't be suspended except in cases of rebellion or invasion. Neither of which is happening. The Constitution (Article III, Section 2., second paragraph) does say that the U.S. Supreme Court has appellate jurisdiction, as to both laws and fact, over a host of matters "with such Exceptions, and under such Regulations as the Congress shall make." Lower federal courts exist only "as the Congress may from time to time ordain and establish" same -- which could be read to allow that they be established with the same sorts of "Exceptions". Also, it's not entirely clear that the Founders intended the U.S. Supreme Court to have the power to declare statutes unconstitutional. HOWEVER -- now that we have hundreds of years of case law saying that the federal courts do have that power, then it seems to me we cannot read Article III, section 2. as making it perfectly OK for Congress and the Executive Branch to conspire to pass unconstitutional laws by prohibiting the courts from calling them on it.

By the way, appellate jursidiction as to fact is part of what the detainee statute explicitly purports to take away. Which leaves detainees without recourse if the military commission makes utterly unsupported findings of fact -- unless you can call that a legal issue, or unless the statute's own procedures say that factual findings must be supported. (I don't have the energy right now to read it through looking for the latter.)

UPDATE: a reasonable way to read the "exceptions and regulations" language is that Congress could, in some initial legislation, have done some fine-tuning of the Supreme Court's jurisdiction, as long as it didn't outright remove any of the broad categories of jurisdiction listed in Article III, sec. 2. That'd be quite a different kettle of fish from passing a statute later on that violated some part of the Constitution, and then tacking on a tailor-made exception to keep the Court from entertaining challenges to that statute.

No comments: