Military Commissions Act

[marty.lederman at comcast.net]

I haven't yet read the paper, but based on the summary, I'm wondering how the paper bears on the questions raised by the MCA and DTA.  Professor Claus appears to address the question whether a statute can "stop the Supreme Court from deciding Article III matters."  But to what extent do the MCA or DTA suffer from this problem?  

For aliens' challenges to detention, the MCA replaces habeas review (recognized in Rasul) with the review to the DC Circuit provided in the DTA.  And the decisions of the DC Circuit can be appealed to the SCOTUS.  The DTA-prescribed DC Circuit review may be constitutionally adequate, or it might not be (depending on what powers the DC Circuit has to order the Pentagon to being its detention procedures into compliance with governing substantive norms).  But there's not any categorical attempt to strip the SCOTUS of the power to "decide Article III matters."  

Possible exceptions:

1.  If an alien is detained *without* a CSRT hearing, there doesn't appear to be any avenue for review.  And so for that category of aliens (which apparently includes some who are detained outside of GTMO), the statute would appear to effectively eliminate any recourse to the federal courts.  This might be a violation of "constitutional habeas," and/or of due process.     As to this group of detainees, the Administration's argument is simply that they are not *protected* by the Fifth Amendment or the Suspension Clause, and that therefore there are no potential "Article III matters" for the courts to consider.  Assuming the SCOTUS rejects this argument -- such as by holding that the detainees are protected by the Due Process Clause -- then I think (but am not certain) that the Administration would concede that they must be provided with some administrative and/or judicial process on the question of whether they are lawfully detained.

2.  There is a provision in the MCA prohibiting litigants from *invoking* the Geneva Conventions -- presumably even where such treaties are relevant to the legal question before a court.  I suspect the Supreme Court will invalidate that provision, perhaps as a First Amendment violation, a la Legal Services v. Velazquez, because Congress can't ask a court to resolve a legal question and then forbid the parties from briefing the question to the court.

 -------------- Original message ----------------------
From: Laurence Claus <lclaus at sandiego.edu>
> I'm looking forward to our list's conversations on the 
> constitutionality of the MCA's jurisdiction-stripping provisions as 
> that issue makes its way through the courts. Here's the link to a 
> piece recently posted on the topic:
> http://ssrn.com/abstract=935368
> 
> All comments welcome.
> 
> Laurence Claus
University of San Diego School of Law 

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