A Stitch in Haste

Am I reading this correctly?

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 unconstitutional, 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.

So concludes Judge James Robertson in upholding the Military Commissions Act against a challenge by Salim Ahmed Hamdan.

So the good news is that a federal judge has indeed issued dicta that Congress cannot suspend habeas corpus incidental to the War on Terror — which is neither "rebellion" nor "invasion" as required by Article 1, Section 9.*

The bad news is that the same judge has ruled that "jurisdiction stripping" is somehow not a violation of due process in and of itself, so the whole "unconstitutional suspension of habeas corpus" problem is irrelevant.

The unconstitutional suspension of habeas corpus is irrelevant.

Madness. Sheer madness.

*As Judge Robertson notes:

Neither rebellion nor invasion was occurring at the time the MCA was enacted. Indeed, Congress itself must not have thought that it was "suspending" the writ with the enactment of the MCA, since it made no findings of the predicate conditions, as it did when it approved Lincoln's suspension in the Civil War and each of the subsequent suspensions in Mississippi, the Phillippines [sic], and Hawaii. Thus, the Great Writ has survived the Military Commissions Act. If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional.

Arlen Specter begs to differ. So much for his miserable "the courts will clean it up" blather.

The case is Hamdan v. Rumsfeld (Hamdan II?), No. 04-1519 (D.D.C. December 13, 2006) (PDF - 22 pages).

More thoughts from SCOTUSblog, Unclaimed Territory.