Monday, January 07, 2008

Habeas Corpus gets put on a diet

Over at the Bellman, Dave3544 asked if the right of habeas corpus had been deleted from federal law, which is a good question and something that isn't entirely clear. For instance, this Keith Olbermann videocast on the death of habeas corpus certainly gives that impression.

But the reality is a bit more complex. Here's how I comprehend the current legal landscape.

The Military Commissions Act or MCA (Public Law 109-366) |PDF| at section 7 denies any alien (or non-citizen) the right of habeus corpus.

As I understand it, under the MCA, the right of habeas corpus is technically still available to an American citizen who is deemed an enemy combatant, but they will now be tried before a military tribunal, (composed of career military only) and not before a federal judge or jury, but that may be reviewable by a federal court.

Here's an interesting twist from Balkanization:

One last point: Section 7(a) of the MCA strips habeas and federal court jurisdiction with respect to aliens. It does not strip jurisdiction with respect to citizens.

However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo?...

[S]ection 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive.

The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction.

To the extent that the MCA would prevent such a determination, it is unconstitutional.|Balkinization|(emphasis added)
Let me know if you think my analysis is incorrect, if there's some supervening federal statute I'm missing.

Personally, I think the MCA is a horrible piece of legislation and should be totally re-worked. I'm not opposed to military tribunals per se, but I think we need some due process safeguards and that we should uphold our treaty obligations under the Geneva Conventions as they are written, not how the Bushies wish they were written.

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