Essay:Withdrawal of Jurisdiction Upheld

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This essay is an original work by Aschlafly. Please comment only on the talk page.

Withdrawal of Jurisdiction Upheld

Over 200 years of legal precedent affirms that Congress may, and often has, withdrawn or limited jurisdiction by courts over certain issues. Judicial supremacists resist this congressional power, and liberals deny its full extent. But this power has always existed and helps control what Alexander Hamilton said in The Federalist No. 78 should be “the least dangerous branch” – the judiciary.

Congress twice invoked this power to remove from federal court claims by suspected terrorists being held at Guantanamo Bay Naval Base in Cuba, a territory implicitly on lease from Cuba. They were never American citizens, and were captured in foreign lands for suspected terrorist activity. They are called “enemy combatants” for that reason. These aliens, represented by an army of attorneys, challenge their detention.

Lawsuits by these detainees form a long-running controversy in the Bush Administration, for five years and counting. The detainees have no shortage of legal talent to advance their arguments. In court they were recently supported by legal filings by the Global Rights, The World Organization for Human Rights USA in support of the detainees, the Legal and Historical Scholars, the British and American Habeas Scholars, and the National Institute of Military Justice.

Their argument is simply this: under federal law, a detained person has a right of habeas corpus to challenge the validity of his confinement. The Magna Carta first established this right for British citizens in 1215, and the English world has respected it ever since. The Latin phrase “habeas corpus” is not easily translated into English, but it roughly means “that one ought to have the body,” and a writ of habeas corpus forces the accuser to justify detaining "the body."

The detainees have already twice been heard and won in the Supreme Court, which grants only 1% of petitions for appeal filed by American citizens. In Rasul v. Bush, 542 U.S. 466 (2004), the Supreme Court held that the detainees enjoy habeas corpus rights, even though they are not located within the United States. The Court held that the district court’s jurisdiction over the detainees’ custodians sufficed.

Congress reacted to this ruling by enacting the Detainee Treatment Act (DTA) of 2005, which mandated that generally “no court, justice, or judge” may exercise jurisdiction over (1) an application for a writ of habeas corpus by detainees at Guantanamo Bay or (2) any other action against the government relating to this detention. A Combatant Status Review Tribunal was established to review claims rather than the court system.

But in 2006, the Supreme Court found a way around this law by holding that the DTA did not strip federal courts of jurisdiction over pending habeas lawsuits. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

Congress responded, again, to reverse what the Court had done, again. Congress passed the Military Commissions Act (MCA) of 2006, which added that it “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.”

The detainees sought to invalidate this as somehow not applying to them, and argued that it is beyond the power of Congress to limit this jurisdiction in light of the Suspension Clause of the U.S. Constitution. The Suspension Clause is set forth at U.S. Const. Art. I, § 9, cl. 2, and states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The D.C. Circuit, led by Judge Randolph and joined by Judge Sentelle, found no application of the Sovereign Clause to aliens held outside of the United States. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. Feb. 20, 2007). The Court held that the Sovereign Clause was not an obstacle to the traditional power of Congress to limit court jurisdiction, and they dismissed the lawsuit. Clinton-appointed Judge Rogers dissented at length, which the panel majority rejected as being “filled with holes.”

On its third trip to the U.S. Supreme Court, the detainees had every reason to expect yet another intervention in their favor. But on April 2, the Court denied certiorari (petition for appeal) in a remarkable three-way opinion. Four Justices (Roberts, Scalia, Thomas and Alito) opposed considering the case, two Justices (Stevens and Kennedy) stated that they would not hear the case now because the detainees had not exhausted all other avenues, and the remaining three Justices (Breyer, Souter and Ginsburg) wanted to hear the case. It takes four votes for there to be a grant of certiorari; the detainees fell one vote short.

The result is a victory for the advocates of limiting jurisdiction of the courts, as Congress succeeded in withdrawing jurisdiction over this highly contentious issue.


--Aschlafly 19:38, 2 April 2007 (EDT)