More Three Ring Power Circus

The habeas corpus amendment to the defense bill proposed by Senator Lindsey Graham (R-South Carolina) could be a decisive card in the separation of powers game presently being played among the three branches of America's federal government.

Glenn in NYC of dKos has posted Graham's amendment to the defense bill. This is the key passage:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States…who is detained by the Department of Defense at Guantanamo Bay, Cuba.

This piece of the legislation does a number of things. To begin with, it trumps a 2004 Supreme Court decision that allowed imprisoned "enemy combatants" to challenge their detentions by filing habeas corpus petitions in the courts. In exercising its constitutional power to suspend the privilege of habeas corpus in wartime, the Republican controlled Congress also supports the administration's claims of sweeping executive power.

More importantly, it reinforces the prerogative of Congress to limit the jurisdiction of the courts. This authority is inferred in Article III of the Constitution, and has been upheld by the courts in ex parte McCardle and other cases.

This is significant when viewed through the lens of the Jack Abramoff scandal. If Congress has the power to restrict jurisdiction of the courts, it can remove itself from the courts' jurisdiction in all criminal prosecutions arising from Abramoff's testimony, and take those matters over to its own review and discipline. That would be a politically risky action, but if push comes to shove and congressional Republicans see it as the only way to maintain their majority, they may consider it a risk worth taking.

The possible ramifications are the stuff of an Orwellian nightmare. The Republican controlled government could place itself above the law by exploiting the law itself, and the concepts of separation of powers and checks and balances would be quaint memories.

Cross posted at ePluribus Media