A Stitch in Haste

I can't do justice to the abominable 2-1 decision by the Circuit Court of Appeals for the District of Columbia holding that the suspension of habeas corpus in the context of non-citizen "enemy combatants" at Guantanamo Bay, Cuba is constitutional.

For what it's worth, here are my hasty stitches:

--To claim that Guantanamo, with all its military accoutrements — its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. — is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind. (UPDATE: Excellent discussion of this topic at Balkinization.)

--The judges commit a fundamental, and fatal, misreading of precedent:

The Supreme Court has stated the Suspension Clause protects the writ "as it existed in 1789," when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus. [INS v. St. Cyr, 533 U.S. 289 (2001)]

Marty Lederman informs us that this claim is inarguably incorrect:

The Court held in St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." ... The Court has not resolved this question, and thus it was a mistake for the D.C. Circuit not to reach it, even if the 1789 writ would not have extended to these alien detainees.

Read Lederman's entire post.

--If it's permissible to base our recognition of habeas corpus — an Article I provision — on what that right purportedly meant in 1789, then why would it not also be permissible to base our recognition of another Article I provision — the War Power — on what it meant in 1789? There was no notion of a "War on Terror" in 1789. There was no notion of "enemy combatant" in 1789. If we're going to freeze, forever more, "habeas corpus" at its 1789 meaning, then must we not also freeze, forever more, "war" at its 1789 meaning? You either believe in "original meaning" construction or you don't. Unless you're a hypocrite.

--Finally, where is that decrepit moron Arlen Specter now? Where is his outrage? Where is his bill re-establishing habeas in all government detentions? The dangerous, destructive fool...

--The detainees have announced plans to apply for expedited review by the Supreme Court. Expedited or not, the Court is virtually assured to hear the appeal, which would be one of the most critical separation of powers cases in American history. Stay tuned.

The case is Boumediene v. Bush, 05-5062 (D.C. Cir., Feb. 20, 2007) (PDF - 59 pages).