The Bush Administration has told the Supreme Court that it has lost its
authority under a law dating back to 1789 to issue an "original" order providing
any relief to detainees now held prisoner by the U.S.anywhere in the world.
Asked by the Supreme Court for its views, the government has now taken its
position, urging the Supreme Court to dismiss outright the pending appeal in In
re Ali (06-1194). The government is relying on the court-stripping provisions of
the Military Commissions Act of 2006 -- a sweeping revision of habeas corpus law as it
applies to foreign nationals in U.S. custody outside the U.S. Up to now, that
law has never been directly invoked against the Supreme Court's "original" habeas power.
What's strange about the government's petition is that it does not deal with suspension clause issues raised by the detainee's petition. As far as I could see from my quick read, the government does not cite, let alone discuss, McCardle, Yerger, or Klein. The detainees at Guantanamo are entitled to at least some habeas protection because of their status, perhaps unlike figures held elsewhere in the war on terror. Compare Rasul v. Bush with Johnson v. Eisentrager. By challenging the "original" jurisdiction of the Court to hear petitions for habeas, which would thereby eliminate all habeas review for these individuals, it seems the government comes closer to the line of suspension. There has been no predicate findings by Congress of rebellion or invasion, so if the writ has been suspended, that suspension is unconstitutional. The Court will decide whether or not the line has been crossed, but I can't see the same type of deus ex machina that saved the Court from confronting the question in Hamdan.