I know. I know. There's still a chance to kill it -- as a procedural matter, if I'm remembering accurately, there's a vote scheduled on an amendment that would repeal that particular section of Graham's amendment -- but I'm having trouble wrapping my head around the fact that they got forty-something votes for it in the first place.
It's been a long time since I looked at constitutional doctrine, but I wonder about the legality of this. Congress has the right to set certain limits on the jurisdiction of the federal courts, but habeas corpus is special: the constitution explicitly provides that it shall not be suspended, except -- and here I quote very loosely, which is to say I'm not checking my memory of the phrasing -- "in cases of invasion or rebellion, where the public safety may require it."
And the thing is, obviously enough, you can argue that the country is at war, despite the fact that there's been no declaration of war. But the country has not been invaded, and there's no rebellion being put down. So it's not at all clear to me on the plain language of the document that Congress can really do this.
But you should take that with a good deal of caution, because I haven't looked at the case law or theory, and constitutional law was never my specialty. I just looked at the provision, remembered the constitution, and my inner lawyer sat up and said, "Huh?" And then, "Guys, no, I'm not convinced you can really go there."
Yeah. It's got a few more steps to go through before it passes, and I'm hoping there'll be enough of an outcry to stop it, even if Congressional voters were inclined to pass it or ignore it, but even the fact that it's been proposed horrifies me.
I hope you're right, I really do. But it's my understanding (and I could be wrong here, I'm sure you know more about it than I do) that similiar things have been done twice before: once during the Civil War- which does qualify as 'rebellion'- and a second time to justify the Japanese internment camps during WWI, which is a situation far more similiar to what we have today. I'm sure you're correct that it wouldn't be entirely legal; I'm just not sure that would be enough to stop it, if it passes through Congress.
As I recall, habeas was invoked successfully in at least one of the Japanese internment cases, with the Supremes holding that the petitioner had every right to use the writ to challenge her detention, and that she should be released at once. But that didn't reach the legality of the original orders removing Japanese Americans from the West Coast, because (it was argued) that order didn't provide for detention, but merely for relocation. And of course, by the time the court ruled on the habeas petition it was 1944, and the war was nearly over.
But the real problem, a quick look suggests to me, is that habeas doesn't need to be suspended within the meaning of the Constitutional provision as far as foreign citizens who've never been arrested or held in American territory goes, because there's a 1950 case holding that under particular circumstances, such citizens aren't entitled to habeas relief anyway. The holding is narrow in some respects, and just a glance at it suggests to me that you could make a nonfrivolous argument that even if it's still good law, it shouldn't apply to the Guantanamo detainees. And the fact that the Court accepted the most recent case for review suggests that at least some of the justices have similar doubts.
But it's clear that this is why the detainees are in Gitmo, and not somewhere in what would indisputably be the territorial United States.
Well, if it makes you feel any better, I gather that Senator Bingaman, the one whose amendment would, if adopted, fix this, has indicated that if by some horrible series of events this legislation makes it through the process unaltered, he's going straight to the courts over it. Which suggests to me that people who've had time to make sure that they really understand the issues involved think this is unconstitutional. And that, in turn, would mean that there'd be a chance of getting it stopped in the courts if all else fails. It's not as if Congress doesn't periodically go and enact something that they know goddamned well they lack the power to enact. The various attempts at Internet indecency laws being prime examples.
At any rate, Bingaman's case must have looked reasonably convincing to a fair number of senators, because Republicans are already offering a compromise on the point. It's not good enough yet, but at least the original provision isn't a done deal.
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branchandroot
no subject
Date: 2005-11-12 03:57 am (UTC)It's been a long time since I looked at constitutional doctrine, but I wonder about the legality of this. Congress has the right to set certain limits on the jurisdiction of the federal courts, but habeas corpus is special: the constitution explicitly provides that it shall not be suspended, except -- and here I quote very loosely, which is to say I'm not checking my memory of the phrasing -- "in cases of invasion or rebellion, where the public safety may require it."
And the thing is, obviously enough, you can argue that the country is at war, despite the fact that there's been no declaration of war. But the country has not been invaded, and there's no rebellion being put down. So it's not at all clear to me on the plain language of the document that Congress can really do this.
But you should take that with a good deal of caution, because I haven't looked at the case law or theory, and constitutional law was never my specialty. I just looked at the provision, remembered the constitution, and my inner lawyer sat up and said, "Huh?" And then, "Guys, no, I'm not convinced you can really go there."
no subject
Date: 2005-11-12 04:27 am (UTC)I hope you're right, I really do. But it's my understanding (and I could be wrong here, I'm sure you know more about it than I do) that similiar things have been done twice before: once during the Civil War- which does qualify as 'rebellion'- and a second time to justify the Japanese internment camps during WWI, which is a situation far more similiar to what we have today. I'm sure you're correct that it wouldn't be entirely legal; I'm just not sure that would be enough to stop it, if it passes through Congress.
no subject
Date: 2005-11-12 11:31 pm (UTC)But the real problem, a quick look suggests to me, is that habeas doesn't need to be suspended within the meaning of the Constitutional provision as far as foreign citizens who've never been arrested or held in American territory goes, because there's a 1950 case holding that under particular circumstances, such citizens aren't entitled to habeas relief anyway. The holding is narrow in some respects, and just a glance at it suggests to me that you could make a nonfrivolous argument that even if it's still good law, it shouldn't apply to the Guantanamo detainees. And the fact that the Court accepted the most recent case for review suggests that at least some of the justices have similar doubts.
But it's clear that this is why the detainees are in Gitmo, and not somewhere in what would indisputably be the territorial United States.
no subject
Date: 2005-11-15 04:59 am (UTC)no subject
Date: 2005-11-15 05:26 am (UTC)At any rate, Bingaman's case must have looked reasonably convincing to a fair number of senators, because Republicans are already offering a compromise on the point. It's not good enough yet, but at least the original provision isn't a done deal.