Flash: Court Discovers the Constitution
MSNBC reports: Court overrules Bush ‘enemy combatant’ policy
RICHMOND, Va. – The Bush administration cannot legally detain an immigrant it believes is an al-Qaida sleeper agent without charging him, a divided federal appeals court ruled Monday.
The case involves a Qatari national and suspected al-Qaida operative who is the only person being held in the United States as an “enemy combatant.”
In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel found that the federal Military Commissions Act does not strip Ali al-Marri of his constitutional rights to challenge his accusers in court. It ruled the government must allow him to be released from military detention.
The best news is that this comes from the Fourth Circuit, the appeals court of choice for neocons and others stuck in the timeline of the First Crusade. This court thinks Roger Taney was a liberal and Joe McCarthy had a pinkish tinge.
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The government has announced it will appeal, so it comes down to how thoroughly Bush owns the Supreme Court.
Marty Lederman of Balkinization has two posts of explanation and analysis.
Correction: apparently, the appeal will be to the 4th Circuit en banc. Apologies for my error.
The 4th Circuit supports habeas corpus? those crazy kids.
Actually Taney, of Dred Scott infamy, was the Chief Justice when Lincoln suspended habeas corpus during the Civil War. There is almost no one who puts on a robe who will agree to the suspension of the Great Writ willingly, because it is the basic power of the third branch of government. The judges can’t rule if the case isn’t put before them, and habeas corpus is the writ most commonly used.
While one of the three felt the Shrubbery could declare people “enemy combatants”, all three agreed that Congress has no power to suspend the writ of habeas corpus.
I have no idea how you can say that the government can hold people indefinitely in a military prison, while simultaneously saying that you can’t suspend the Great Writ, but logic is not a winger strong suit.
Bryan notes: “[A]ll three [judges] agreed that Congress has no power to suspend the writ of habeas corpus.”
This is interesting as it is the exact opposite of the Civil-War-era claims that Lincoln did not have the authority to suspend the writ of habeas corpus. The argument then was that, since the statement “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.” appears in Article I, and since Article I defines Congress and its powers, one must infer that *only* Congress can suspend the writ.
Lincoln’s response was that
1) The Constitution does not expressly state who is empowered to suspend the writ, although it is clear that it *can* be suspened (when in Cases of Rebellion or Invasion the public Safety requires it).
2) If the writ needed to be suspended while Congress was in recess, that suspension could not wait for Congress to assemble. And,
3) He did it because he thought it was necessary, but when Congress convened, he expressly asked them to declare his action illegal if they found it to be so. (They did not.)
I am curious as to the basis for the modern argument that Congress can not suspend the writ.
Is the argument that, at present, there is no rebellion or invasion that demands suspending the writ?
It is, as you note in your last sentence, Jim, that the suspension does not meet the test of rebellion or invasion. In the real conclusion of the case started by Lincoln’s action, the ruling in ex parte Milligan was that the court system had to be unable to function for the writ to be suspended. To the best of my knowledge that is still the test, as it hasn’t come up since.
While Lincoln made those claims, in his private papers it was clear that as a lawyer he felt he had overstepped his authority.
Several notes in regrettably random order (it’s late; I’m tired):
* Lincoln at least inarguably had a rebellion on his hands. Bush apparently wants to argue that a couple dozen people constitute an “invasion”; most people outside the administration, of any political stripe, consider that a real stretch, or worse.
* I still see ex parte Milligan cited with fair frequency on the blawgs I read. I am not a lawyer, and I tend to read the more approachable law blogs (Balkinization, VoteLaw, SCOTUSblog and John Dean’s blog on Findlaw), but I’d have to guess that that decision either still stands or else is still a major influence in habeas reasoning. For more definitive info, you’ll need a lawyer.
* Lincoln was by reputation a better-than-decent lawyer before he became president. It would surprise me more if he did not have reservations about suspending habeas.
Of course, Steve, if you talk to lawyers they will argue their case, and only nine in the entire country have opinions that count.
At this point the question is does the Shrubbery think he can win with the Supremes.