Today the Senate passed S. 3930, the Military Commissions Act. Reuters reports here in the Washington Post. Yesterday the House passed substantially the same bill as H.R. 6166.
Section 7 of both bills amends the primary habeas corpus statute: 28 U.S.C. § 2241. The bill deletes two subdivisions: subdivision (e) and the other subdivision (e).* These had been added late last year and applied only to aliens at Gitmo. The new subdivision (e) drops the ill-conceived location restriction and forbids habeas corpus for aliens determined to be enemy combatants or awaiting such determination.
Senator Leahy says this provision is "flagrantly unconstitutional." No, actually, it isn't. As explained in Part III of CJLF's brief in Hamdan v. Rumsfeld, the common law writ protected by the Suspension Clause did not extend to enemy prisoners held by the military. Although the habeas statute was held to extend to them in Rasul v. Bush , the Court did not say that Congress could not amend the statute. The Court's interpretation of the statute as it then existed mooted the constitutional argument, and the Court did not decide it Rasul or Hamdan. Opponents can still argue that it is unconstitutional, but "flagrantly"? No.
Unlike the habeas provision of the Detainee Treatment Act at issue in Hamdan, this one unambiguously applies to pending cases. Here is the full text of the habeas section:
SEC. 7. HABEAS CORPUS MATTERS.
(a) In General.--Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):
``(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
``(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.''.
(b) Effective Date.--The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and 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.
* Cf. Newhart, "I'm Larry, this is my brother Darryl, and this is my other brother Darryl."