XDA

Those of us interested in American military history usually didn't have to follow the interplay between Congress and the Supreme Court to follow what was happening in a war because, as it should be, the Executive was the only player allowed at the table by the Constitution. Times have changed.

Here's some background. We are not immediately executing the illegal combatants we capture around the world in the war the Jihadists are waging against us, but have detained a few hundred at a military base at Guantanamo Bay in Cuba. The illegal combatants want out and have used the great writ--Habeas Corpus-- to get to federal court. Congress has passed laws preventing them from going to court.

In Rasul, the Supreme Court held that the detainees in Cuba had a statutory right to habeas action, but left open the question whether there was a constitutional habeas right. In response, Congress passed a law, the Detainee Treatment Act of 2005, which stripped out of federal courts, or any court, the jurisdiction to hear such cases and left the determination of the detainees' fates to military tribunals set up by the Executive Branch. In Hamden, the Court said 'not good enough' and held that Congress had to set up the military tribunals. Congress complied with the Military Commission Act, which law was the subject of a recent consolidated appeal in the D.C. Circuit Court.

Earlier this week, there was a new decision on the subject. Here it is, as simplified as I can make it--Non-citizens of America, held in captivity (like war prisoners) outside American territory, have neither a statutory nor any constitutional right to bring a challenge, in a federal district court, to their being held, through the writ of Habeas Corpus. There, now you don't have to read the 68 page pdf file here of the case Boumediene v. Bush from the D.C. Circuit--a three judge panel which went 2-1 for the recent jurisdiction stripping law's constitutionality.

I have been getting a little more scathing in my posts here (especially about Paul Campos) and, now that I think about it, in some of my briefs lately. So I was happy to see that the two judges in the majority (Judge A. Raymond Randolph, who was appointed by the first President Bush in 1990 and Judge David Sentelle who was appointed by President Reagan in 1985) were equally scathing against the dissenting judge, Judith Rogers (appointed by President Clinton in 1993), calling her an idiot (in a polite sort of case writing way) on numerous occasions (and she was, big time). Creative but not cogent, indeed.

The case will of course go to the Supreme Court where we on the right side have our fingers crossed that since Congress created the military tribunals (in the law that stripped away Habeas Corpus jurisdiction, again), Justice 'Any Way the Wind Blows' Kennedy will be satisfied that the tribunals deciding the Guantanamo prisoners fates are now "regularly constituted courts," as required by the Third Geneva Convention, Article 3, section (d), and will vote with the conservative majority this time. That will pretty much be the end of Guantanamo habeas cases (which are all dismissed right now). It is unlikely any attempt to give the foreign prisoners back a statutory habeas right will get past a Republican filibuster.