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December 20, 2006

Habeas Stripping Provisions Addressed

Over at scotusblog, they've posted the recent district court decision addressing the habeas-stripping provisions of the Military Commissions Act of 2006.  You can find the decision here.  Addressing the retroactivity and power-stripping provisions I wrote about earlier this year, the court wrote:

It has been clear since Ex Parte Yerger, 75 U.S. 85 (1869) (habeas petition by a prisoner facing trial by military commission), that statutory language will be interpreted as stripping courts of their habeas jurisdiction only when the intent of Congress is abundantly clear. “Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal.” INS v. St. Cyr, 533 U.S. 289, 299 (2001). In the instant case, it appears to be conceded that Congress’s intent to remove jurisdiction over future habeas petitions filed by a specified class of individuals was clear enough. Hamdan’s submission, however, is that the MCA lacks the requisite clarity to support its retroactive operation – stripping the courts of their jurisdiction over previously filed habeas cases.

Turning to the question of retroactivity, the court first quoted the pertinent language, Section 7 of the MCA :

Section 7(b) instructs that “the amendment made by subsection (a)” is effective immediately, and that it applies both retroactively and prospectively. New subsections (e)(1) and (e)(2) both amend the habeas statute and therefore together comprise “the amendment made by subsection (a).” Section 7(b), then, means that all of § 7(a), and not just the part encompassed in new subsection (e)(2), applies retroactively.

Application of the retroactivity clause in § 7(b) to new subsection (e)(1) is also compelled by the framework of the statute. The references in section 7 are to one large category of cases: those cases that relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of certain aliens. In § 7(a), Congress divided this broad category into two subcategories – (1) habeas petitions and (2) “any other action[s] against the United States ... relating to any aspect of the detention...” – and removed jurisdiction over both types of cases. “Other,” as used in this subsection, logically describes cases other than the habeas petitions referenced in the previous

In a lengthy further discussion, the court held that the MCA did not actually suspend the writ, but if it had, it would be unconstitutional.  I am not expert in this area, and so commend it to your further reading and, if you care to, comment and explanation.

December 20, 2006 in Current Affairs | Permalink

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