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More on Habeas and the MCA

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In the Dec. 4 issue of The New Yorker, Jeffrey Toobin has an article titled "Killing Habeas Corpus: Arlen Specter's about-face." (Hat tip: Ward Campbell.) The thrust of the article is that the Great Writ has been killed by the Military Commissions Act of 2006, denying the writ to enemy aliens, but the Supreme Court will likely strike this provision down. It goes into how Arlen Specter opposed the provision but voted for the final bill. Curiously absent from the article is any evidence of awareness on Toobin's part that there is a strong historical argument that enemy aliens did not have the privilege of habeas corpus at common law and therefore do not come under the constitutional guarantee of that privilege. The curious thing is not that Toobin isn't convinced by that argument. What is strange is that he seems to be blissfully and smugly ignorant that a controversy exists. The first half page of the article is all about how important habeas was historically and the narrow circumstances under which the privilege could be suspended, without a single word about whether that historical privilege ever extended to enemy aliens.

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