Thursday, January 05, 2006

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


  1. "And it's ALL legal! That's the beauty of it!"

    Consider it done, I say. I really, unfortunately, don't see anything to stop them. Hitler changed the laws to make something he really really wanted "legal", too, isn't that right?

    Just askin'. Not comparin'. Yet.

  2. Yeah. The beautiful ugliness of it.

  3. Congress wouldn't have to "change" any laws to make exceptions to the appellate jurisdiction of the Supreme Court or of federal courts generally. That power is given to them by the Constitution. There is something to be said, however, for the argument that the Constitution requires the full "judicial" power to be vested in some court(s) (either the Supreme Court, or Federal Courts, or some combination thereof). Under that view, this statutory language would fail because it purports to remove the issue from the judiciary entirely.

    By the way, did any of you hear comments by Dick Cheney about how NSA spying like Bush authorized might have prevented 9/11. That's a load of crap if I've ever heard one, but I'm no longer suprised by the depths to which Cheney will sink in trying to justify himself or Bush.

  4. Maybe I'm missing your point, Scott, but wouldn't some sort of blanket amnesty for the Abramoff stuff require at least an interim statute?

  5. Sorry...I think I misread Jeff's post. I took him to mean that a jurisdictional change by Congress wouldn't be legal. I can see that's not what he meant. I was still stewing over Cheney's comments when I read it!

  6. I think we're on the same page, Scott.

  7. Congress can't just make a jurisdictional, and/or temporary changes to the fucking Constitution. I could give 2 flying shits what Bush or Flatline say.

    Screw the pitchforks and torches, folks - it's time for chainsaws and battery-operated power tools.

    Semper Fidelis