Wednesday, January 04, 2006

No Habeas for GITMO Prisoners

NYT's Neal A. Lewis reports:
The Bush administration notified federal trial judges in Washington that it would soon ask them to dismiss all lawsuits brought by prisoners at Guantánamo Bay, Cuba, challenging their detentions, Justice Department officials said Tuesday.

The action means that the administration is moving swiftly to take advantage of an amendment to the military bill that President Bush signed into law last Friday. The amendment strips federal courts from hearing habeas corpus petitions from Guantánamo detainees.

Lewis tells us this action is legal because "…the Constitution allows Congress to define the scope of jurisdiction for all federal courts below the Supreme Court."
I'm not sure where Lewis got this piece of legal interpretation. Article I of the Constitution empowers Congress "To constitute tribunals inferior to the Supreme Court." In contemporary times, "constitute" means "form or compose." I suppose that in the act of forming or composing an inferior court, Congress would define its legislation, but does that mean it can change a court's jurisdiction to suit the whims of the executive department?

It seems that a better legal justification for passing this sort of legislation would be the legislature's constitutional power to suspend "the privilege of the write of habeas corpus" unless "when in cases of rebellion or invasion the public safety may require it."

Of course, we might well quibble over whether America faces a rebellion or an invasion, but I like using congressional power to suspend habeas corpus than interpreting an inferred power to gerrymander an established court's jurisdiction.

I'll be interested to see the actual wording of the amendment to the defense bill.


A chief sponsor of the habeas corpus amendment is Senator Lindsey Graham (R South Carolina.) Why is it that every time Congress kowtows to the administration, Graham seems to be one of the ringleaders?

One can't help but wonder to what extent the habeas corpus amendment was part of a Senate dope deal: McCain could have his torture amendment if he'd back down on giving the GITMO detainees access to due civilian courts.


  1. I can tell you where the interpretation regarding court jurisdiction comes from:

    Article III states that the judicial power of the U.S. will be vested in a Supreme Court and "such inferior courts are the Congress may from time to time ordain and establish." This has been interpreted to mean that Congress, in "ordaining and establishing" the federal courts, also determines their jursidiction. A perfect example of this is the U.S. Court of Appeals for the Federal Circuit, which Congress created in the 1980s, and which is only allowed to hear Patent, trademark, and copyright cases.

    There has been debate on the power of Congress to curtail federal jurisdiction, but the case law, as I recall, tends to support the proposition that Article III does give them that power.

    Also not so well known is the fact that Article III gives Congress the power to regulate the appellate jurisdiction of the U.S. Supreme Court. Article III says:

    "...the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

    That's fairly clear on its face. It would be interesting to see what happened if Congress ever exercised this power.

  2. I'll need to take a deeper look into this, Scott. But on the face of it, there's a separation of powers problem if Congress can change jurisdictions at will after the fact of creating a court. Way, way too easy to target a population or a particular type of crime that way.

    As to regulating appellate jurisdiction, did Congress do that when it created the appellate courts? Or do you take that part to mean that Congress can regulate what SCOTUS can and can't hear on appeal?


  3. Jeff:

    The Congressional power is part of the checks and balances system.

    Yes, Article III says quite plainly that the Congress can regulate what cases SCOTUS can or cannot hear on appeal.

    With respect to changing the powers of the federal courts - Congress can establish or abolish the courts. If they couldn't change their jurisdiction after creating them, they could simply dissolve them and recreate them with the new jurisdiction. Would amount to the same thing.

    One argument that has been presented on the other side of things is that Article III requires that the judicial power be established in the Supreme Court and lower federal courts, so some people have argued that if the Congress stripped the Supreme Court of appellate jurisdiction on an issue that was part of the federal judicial power, they would have to leave such jurisdiction intact elsewhere in the federal system (i.e. in the lower federal courts). This hasn't been tested yet. As I recall, the majority view among Supreme Court justices throughout they years (including the most recent court, and the current court) has been that Congress does indeed have the power to remove appellate Jurisdiction from the Supreme Court. As I said above, it is pretty clear on the face of Article III that they can do this. It's another check and balance built into the system, this time a check by Congress on the Judiciary.

  4. I'm looking around for the draft of the bill. That may answer a few things.

  5. Just as a point of interest, here's a quote from an old Supreme Court decision on this issue:

    “[W]hile the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe.... What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not.”

  6. Hmm. Got a link for this or a name of the case.

    I smell a story coming on.

  7. I can get you the cite for the case.

    Another interesting case is Ex Parte McCardle. I don't have the cite for it offhand. It was a habeas corpus action that went to the U.S. Supreme Court. Congress didn't want the court deciding it, so they passed a Bill saying the Supreme Court didn't have jurisdiction over the matter. The Supreme Court agreed that Congress controlled that jurisidiction and dismissed the petition.

    There have been other cases, though, where the Supreme Court has said no to Congressional attempts to limit jurisdiction, usually on some legal grounds that they are interfering with the province of the judiciary (by interrupting a case in progress, for example), but not outright denying that Congress has the power to regulate their jurisdiction.

  8. btw - First case I cited is called "The Frances Wright," 105 U.S. 381 (1881). I think the full case is here:

    Once you get into the opinion portion, section 1 deals with the jurisdictional issue.