Due Process for Jihadists?

Andrew McCarthy has another good article in the Weekly Standard on the enemy alien habeas corpus cases. He makes a very persuasive argument that the framers would not have conceived that habeas corpus would have been available to aliens held overseas.

Professor Orin Kerr is wondering, after last week's certiorari grants, if the Supreme Court would be taking "lots and lots" of habeas cases, both because it wants to get involved and because it is not busy with other cases.

I do not know how much clearer Congress could be when it said that it said that the jurisdiction-stripping provisions of the Military Commissions Act. Section 7(b) of the MCA says that it applies to "all cases, without exception." The D.C. Circuit likened it to Congress slamming its fists on the table shouting, "when we say all, we mean all,without exception!"

Congress has rarely found it necessary to emphasize the absence of exceptions to a clear rule. Indeed, the use of "without exception" to emphasize the word "all" occurs in only one other provision of the U.S. Code. See 48 U.S.C. 526(a).

If the Court rules that it has jurisdiction under the Constitution; that its jurisdiction extends overseas; and that the MCA is not equivalent to the common-law habeas corpus remedy; and it persists in assuming habeas corpus jurisdiction, one can expect a reaction from the political branches (Congress and the President). Congress and the President have already attempted jurisdiction-stripping; there is probably no basis for impeachment; term limits could probably not be imposed; one could probably imagine another effort to expand the Court to 11 to give the President two more appointments.

If the Court rules in favor of world-wide habeas jurisdiction, there would be no distinction in holding enemies overseas and holding them in the United States. Hillary Clinton, if she is elected, has promised to close Guantamo, presumably moving them to somewhere like Leavenworth. She had better hire lots of lawyers in the Justice Department, because they will be traveling all over the world, wherever prisoners of war are being held, defending against habeas corpus actions.