Hamdan Loses a Round in the District Court
The Military Commissions Act and the briefs of the parties present three questions: (1) As a matter of statutory interpretation and construction, did Congress actually succeed in removing our statutory habeas jurisdiction over the detainee habeas cases? (2) If so, is the Military Commissions Act a constitutionally valid “suspension” of the writ of habeas corpus within the meaning of the Suspension Clause, U.S. Const. art. I § 9 cl. 2? (3) If not, and if a “constitutional” writ of habeas corpus survives the Military Commissions Act, does Hamdan have a right to seek such a writ? The answers to these questions are “yes” to number (1) and “no” to numbers (2) and (3).
The court's answer to question (1) is hardly surprising, as the language of the MCA clearly makes it applicable to pending cases. There are, however, some interesting nuances in the answers to questions (2) and (3).
As to question (2), Judge Robertson arguably rejects the view expressed by Justice Thomas that Congress is the sole judge of whether the constitutional conditions necessary for a Suspension of the Writ, “rebellion or invasion,” are present. I say “arguably” because while Judge Robertson says flatly there was no rebellion or invasion justifying suspension, he also says that Congress itself did not believe that there was an actual rebellion or invasion. Also noteworthy is Judge Robertson’s decision even to answer question (2). In light of his answer to question (3), he could have assumed without deciding that there was no valid suspension.
Judge Robertson’s conclusion with respect to question (3) is plausible but does not, in my view, adequately answer the Supreme Court’s dicta in Rasul. There, the Justices suggested without deciding that several distinctions between the facts of detention in Eisentrager and the facts of detention at Guantanamo should make a constitutional difference. (The Court did not decide the issue, however, because it resolved the case on statutory grounds.) Judge Robertson does draw one salient distinction with Rasul, however: He says that the expectation that Hamdan will be tried by a military commission with the blessing of Congress means that he, like the Eisentrager petitioners, will be afforded access to a proper tribunal. Whether that is enough to put the case squarely within the rule of Eisentrager remains to be seen. Surely the courts have not heard the last of Mr. Hamdan.