Testing the Military Commissions Act: Hamdan and Khadr REDUX

SCOTUSblog posts on two important new tests of the Military Commissions Act’s viablity and constitutionality. Two men held by the US military, Salim Ahmed Hamdan, a Yemini, and Omar Khadr, a Canadian, filed a combined appeal with the Supreme Court, of two lower court rulings holding that they, as “Detainees,” had lost the right to challenge their detention. No docket number as assigned yet, but the case name is Hamdan v. Gates/Khadr v. Bush.

Both men raise this as their initial question: “Do individuals detained as alleged enemy combatants at the Guantanamo Bay Naval Base in Cuba have access to habeas corpus under the Constitution or by statute?”

In both men’s cases, the answer from the courts thus far has been “no.” As to their current pleading before the Supreme Court:

[T]heir petition also poses these two added questions: [(1)] Is the Military Commissions Act of 2006, which purports to strip federal courts of habeas jurisdiction with respect to Guantanamo Bay detainees, unconstitutional because it violates separation of powers, the Bill of Attainder Clause, and Equal Protection guarantees? [(2)] Even if the MCA validly withdraws habeas jurisdiction over petitions filed by individuals detained as alleged enemy combatants, are the petitioners in this case who are facing criminal prosecution before military tribunals – and sentences of life imprisonment and death – nevertheless protected by fundamental rights secured by the Constitution, including the right to challenge the jurisdiction of such a tribunal via the writ of habeas corpus?”

As you likely know, the 2006 Military Commissions Act (MCA) incorporated a “habeas stripping” provision that prevents the detainees from petitioning for habeas corpus with federal courts. They’re challenging the constitutionality of the MCA, and the result is the subject of much interest. After Hamdan v. Rumsfeld through the Military Commissions process into a freefall, Congress sidled up with the Administration, pulled the MCA out of its hat, and the Administration produced the Manual for Military Commissions, a 500-odd page manual covering procedure, rules of evidence, and the rest of the commissisons process. Now that the process has started, the challenges begin.

The Hamdan part of the petition is a plea to have the Court take on his case without waiting for the D.C. Circuit to rule on an appeal he has pending there to challenge a U.S. District Court ruling last Dec. 13. Khadr is an appeal from the D.C. Circuit’s ruling on Feb. 20.

Habeas has a long and complex history that pre-dates the Constitution. Whether it may, or may not, be waived as to these “detainees,” will be an important decision for the Court–if they take up the petition for cert. More history on habeas later, if time permits.

Read the entire story at SCOTUSblog

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