A constitutional argument for court-stripping
on Jan 19, 2006 at 12:00 pm
Filling in gaps in the Bush Administration’s argument that Congress meant to wipe out existing court challenges to war on terrorism detention of foreign nationals, the Washington Legal Foundation on Wednesday said that the Constitution imposes no barrier to Congress’ authority to do so. (The Foundation’s brief can be found here.)
So far, in filings in the Supreme Court and in the D.C. Circuit Court defending its position on the impact of the new Detainee Treatment Act of 2005, the federal government has made no constitutional claim. It has silently assumed that Congress had the power to enact the court-stripping provision as it applies to already pending cases. But the constitutional issue is a major one for detainees’ lawyers, who vigorously contend that Congress may not scuttle existing lawsuits.
The constitutional question lurks in the detainee cases as a back-up argument by their lawyers. Their primary claim is that Congress did not intend to apply its court-strippling maneuver to cases already in the courts. But, if they lose on that point, then the constitutionality of that result emerges directly.
The Washington Legal Foundation, a conservative legal advocacy group, took on the constitutional issue in a brief it filed in the D.C. Circuit in two packets of pending appeals by detainees. Like the Justice Department, WLF contended, in the first instance, that Congress did, indeed, intend to strip courts of their authority to proceed with any existing habeas case filed by a detainee at the U.S. military prison at Guantanamo Bay, Cuba. The Act, it argued, “most logically should be read as expressing a congressional intent that the DTA be fully applicable to these and other cases pending on December 30, 2005 [the date of enactment into law].”
But, the brief went on, the detainees are arguing that if the Act does apply to their cases, “it would constitute an unconstitutional effort to infringe the powers of the federal courts. Any such argument is without merit.”
There is nothing in the new law that seeks to overturn a final ruling in a case already decided, it suggested. And, while the Act does seek to overturn the Supreme Court’s ruling allowing detainees to bring habeas challenges, the WLF said, “Congress is well within its rights in having the final say regarding how statutes should be interpreted.”
Moreover, WLF added, “there is no basis” for a claim that the Act is unconstitutional as a measure to suspend the writ of habeas corpus, in violation of Article I, section 9, clause 2. The Supreme Court, it said, ruled in INS v. St. Cyr in 2001 that the suspension clause “protects the writ as it existed in 1789.” WLF said that “there is no tradition, either in 1789 or thereafter, of opening federal courts to the claims of nonresident aliens challenging their federal detention.” While the Supreme Court “reversed that tradition” in 2004, but there was no such access “in 1789 and for nearly 200 years thereafter.”
The Foundation, filling in another gap in the government argument, replied to the detainees’ lawyers contention that the St. Cyr decision shows that Congress has to provide a clearer statement than it did in the Detainee Act to show that it intended to make its court-stripping provision apply to pending cases. Responding to that statutory argument, WLF contended that the St. Cyr decision involved a statute that did not use the specific phrase “habeas corpus,” but the Detainee Act explicitly does.
