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Analysis: Constitutional issues, post-Hamdan

The Supreme Court decided the war-on-terrorism military commission case (Hamdan v. Rumsfeld, 05-184) on June 29. Sometime in the next week or two, Congress is expected to vote on a bill crafted by the White House and key Senate Republicans in reaction to Hamdan.

The Supreme Court’s Hamdan v. Rumsfeld decision left at least two constitutional questions lingering, finding no need to respond to them. Both are now lurking in the background as Congress prepares to consider legislation that would narrow the rights of terrorism suspects being held at the military prison at Guantanamo Bay, Cuba — a dozen or two facing war crimes charges, hundreds facing no charges.

The first question is whether Congress has the authority, under its control of federal court jurisdiction, to deny the Supreme Court an opportunity to hear a habeas challenge to detention and to potential trial of Guantanamo detainees on war crimes charges. More specifically, the question is whether a detainee could pursue an “original writ of habeas” directly in the Court, even if Congress passed the pending compromise White House-Senate Republican post-Hamdan bill (introduced last week as S. 3930 and as part of S. 3929, a sweeping bill that also includes new restrictions on court review of foreign intelligence wiretapping that reaches Americans using the telephone or Internet connections in the U.S.)

The second question is whether Congress can suspend the writ of habeas corpus altogether, by simply denying any judge — including any Supreme Court Justice — the authority to hear any habeas case brought by a detainee captured since the terrorist attacks of September 11, 2001.

Both questions were put before the Court in Hamdan, but the Court concluded “we find it unnecessary to reach either of these arguments” (made by Salim Ahmed Hamdan’s lawyers). It interpreted the Detainee Treatment Act, by its own language, as not taking away the courts’ authority (including the Supreme Court”s authority) to decide the Hamdan case, since it was pending before the DTA was passed late last year. The Court did note, though (in footnote15), that interpreting a law to “entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions.”

It appears that that is exactly what S. 3930 (and Title I of S. 3929) would do. Section 6, “Habeas Corpus Matters,” strikes out the language of the DTA upon which the Supreme Court found the Hamdan case to be still within its reach, and presumably, still within reach of the lower courts in Washington, D.C.

In place of that version, the new bll states: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed on or behalf of an alien detained by the United States who (A) is currently in United States custody; and (B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” The provision goes on to say that “any other action” brought by a detainee would have to be brought in the D.C. Circuit Court, but that would be open to a narrower range of issues than a normal habeas petition. (Note that these provisions are not limited to detainees now at Guantanamo.)

To make explicit that previously pending cases (including, presumably, Hamdan’s continuing case), the White House-GOP leadership bill includes a new effective date provision, reading: “The amendments made…shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending or or after the date of the amendment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.”

That would seem clearly to apply to hundreds of pending habeas cases by detainees, now awaiting a decision in a packet of two appeals in the D.C. Circuit, and in the continuing consideration of the Hamdan case in the wake of the Supreme Court ruling. Thus, if Congress passes the bill as presently written, the D.C. Circuit presumably would be the first to resolve the issue, although it is conceivable that some detainees’ counsel would attempt to bring a new habeas challenge in District Court to test the new provisions, and perhaps an original habeas in the Supreme Court for a more direct test.

The timing of Senate and House consideration of the new measure is not fixed at this point, but it is understood to be imminent.