Response to an Earlier Comment

Chris Schell posted a comment/question last week. Here’s the relevant portion:

You keep saying HC is denied to certain people and then talking of the detainees in cuba. Without debating what rights non-citizens captured during military operations in another country are entitled to, does the act apply to citizens or non-citizens in this country? May the president (and is it only the president?) deem a citizen (in the usa or not) or non-citizen (in the USA or not) an “enemy combatant” and jail that person without legal recourse? It is my understanding that the MCA or thr Patriot Act allows this, but I’m am unsure if this is true. Could we have the precise language of the act? Bushies have of course claimed that he could, like Lincoln, suspend HC in part or totally for reasons of “national security”. If this is true then the act almost narrows the president’s right to suspend HC instead of expanding it. Comment or clarifications?

Apologies for the late response, but here goes (this’ll be a long one, so bear with me).For starters, this is the precise language from the Military Commissions Act:

SEC. 7. HABEAS CORPUS MATTERS. (a) In General.–Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e): “(e)(1) 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 detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. “(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”. (b) Effective Date.–The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

In lay terms, what this provision purports to do is bar courts from considering a habeas petition from a (non-citizen) detainee who has either been classified as an “enemy combatant” or is awaiting that determination (in a “Combatant Status Review Tribunal,” or CSRT). It also says that you can’t use a habeas petition to challenge the determination of a CSRT that you are, in fact, an enemy combatant.The Detainee Treatment Act, mentioned in the statute, provides only for review of CSRT findings in the DC Circuit, and, even then, that court can only examine whether the CSRT complied with its own “procedures.” It may not engage in any sort of searching review of the factual record to determine whether it supports a combatant status ruling, let alone reopen the record to review additional evidence. There’re lots of other restrictions as well.To be clear, the writ of habeas corpus is the primary way that individuals in government custody seek an independent review of the basis of their conviction. In legal terms in the United States, habeas is the mechanism by which state or federal prisoners can have their convictions “collaterally reviewed” by another adjudicative body. The notion is that courts sometimes make mistakes (and think about Southern prosecutions of African-American defendants in the olden days). Prosecutions can be overzealous. Evidence missed. All that. Habeas provides a sober second look at the primary proceeding.The Military Commissions Act bars that collateral review for detainees at Gitmo (and the government argues that it bars review even for “enemy combatants” held on American soil). And, it effectively gives the president absolute authority to determine who is or is not an enemy combatant. It’s pretty sweeping stuff.The Patriot Act doesn’t really have anything to do with whether detainees at Gitmo (or in military custody on US soil) can file a habeas petition. It does, however, have a whole lot of other problems.Hope that answers your question! Please feel free to follow up with additional comments, questions, praise or, I guess, criticism.