Last week, President Bush signed into law a measure removing detainees' right to file habeas corpus petitions in the US federal courts. On Friday, the administration asked the Supreme Court to make this retroactive, so nullifying about 220 cases in which prisoners have contested the basis of their detention and the legality of pending trials by military commission.
The fact of the habeas bill alone is fuzzy constitutionality at best. Article I allows Congress to suspend the privilege to the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it."
Alberto Gonzales has probably already drafted the memo that says "honest criticism" of the administration constitutes "rebellion" and that the Guantanamo detainees invaded the United States by being captured and flown to Cuba. With Bush appointees like John Roberts on the Supreme Court, that sort of legal argument might stick.
But a retroactive habeas bill would be an ex post facto law, something the Constitution expressly forbids Congress to pass: wartime, peacetime, any time. Maybe that's why the administration is asking the Supreme Court, not Congress, to make it retroactive. Gonzales will likely argue that it won't be an ex post facto law if the court makes it retroactive, because judges like Roberts are strict Constitutional constructionists, and strict constructionists don't legislate from the bench.
So the retroactive habeas bill won't be an ex post facto law, it will be an ex post facto decision, which the Constitution doesn't prohibit.
Or some Orwellian humbug like that.