Application of the Military Commissions Act is underway, with a Justice Department memo telling the U.S. District Court in D.C. it has no habeus authority over 196 pending cases involving Guantanamo detainees.
Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court here that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba. In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that “no court, justice, or judge” can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future. Beyond those already imprisoned at Guantanamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.
The new law already has been challenged as unconstitutional by lawyers representing the petitioners. The issue of detainee rights is likely to reach the Supreme Court for a third time.
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A number of legal scholars and members of Congress, including Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), have said that the habeas provision of the new law violates a clause of the Constitution that says the right to challenge detention “shall not be suspended” except in cases of “rebellion or invasion.” Historically, the Constitution has been interpreted to apply equally to citizens and noncitizens under U.S. jurisdiction.
The administration’s persistence on the issue “demonstrates how difficult it is for the courts to enforce [the clause] in the face of a resolute executive branch that is bound and determined to resist it,” said Joseph Margulies, a Northwestern University law professor involved in the detainee cases.
From a public policy standpoint, the idea of locking accused terrorists and their abetters up without some reasonable degree of proof and judicial oversight strikes me as an incredibly bad idea. From a Constitutional law standpoint, though, this may well be within the power of the legislature. The key is the ”Shall Be Vested” clause, which is contained in the first sentence of Article III: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
FindLaw’s Annotated Constitution is invaluable for such things:
The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words ”shall be vested” in Sec. 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary, 133 the Constitution has not been read to mandate Congress to confer the entire jurisdiction it might. 134 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it, 135 and, second, an act of Congress must have conferred it. 136 The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct. 137
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[Footnote 134] See, e.g., Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story’s argument is Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985); and see Symposium: Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully infra, Professor Amar argues, in part, from the text of Article III, Sec. 2, cl. 1, that the use of the word ”all” in each of federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories.[Footnote 135] Which was, of course, the point of Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), once the power of the Court to hold legislation unconstitutional was established.
[Footnote 136] The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 33 (1812); Kline v. Burke Construction Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have expressed the opinion that Congress’ authority is limited to some degree by the Constitution, such as by the due process clause, so that a limitation on jurisdiction which denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 965-966 (D.C.Cir. 1949), revd. on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.), cert. den., 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700. 703 n. 5 (D.N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688. 694- 695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.
[Footnote 137] Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799); Bingham v. Cabot, 3 U.S. (3 Dall.) 382 (1798); Jackson v. Ashton, 33 U.S. (8 Pet.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).
The Congress theoretically has absolute power to limit the power of–or, indeed, to disband entirely–the lower courts, so long as the president signs off.
Conversely, however, Article I, Section 9 provides (among other things) that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The history of judicial interpretation on this provision, however, is incredibly murky. Regardless, the Congress can certainly suspend the jurisdiction of lower courts on the matter. Thus, only the Supreme Court has the authority to decide.
