Today’s Washington Post carries a front-pager, by Charles Lane of the Supreme Court beat, on the Hamdan case that will come up for oral argument this Tuesday. As the very last issue he takes up regarding the case, Lane mentions the controverted effect of the Graham-Levin amendment (formally known as the Detainee Treatment Act), which I discussed here last week. According to Lane, the Act “stripped federal courts of jurisdiction over habeas corpus petitions from the Guantanamo Bay detainees ‘pending on or after’ the date of its enactment.” He goes on to report that the government’s latest briefs urge the Court to consider Hamdan’s case as covered by this language, while Hamdan’s lawyers urge the Court to treat this language as applying only to new cases that originate since the law’s enactments.
I think the Justice lawyers have the better reading of the verb “pending,” but it seems to me that this is a moot point. The stronger argument, resting on the language of the Act, is that all of this debate about the applicability of the “pending on or after” phrase is beside the point.
Here’s the whole sentence in which this phrase appears: “Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.”
Now here’s the trouble. Hamdan’s case is an application for a writ of habeas corpus, and those cases are shut down altogether, without reference to their timing or the stage they have reached as of the law’s enactment, in paragraph (1) of subsection (e). Paragraphs (2) and (3) then go on to describe the new process for review of rulings made by the military tribunals at Guantanamo, funneling that review exclusively through the U.S. Court of Appeals for the D.C. Circuit. Hamdan’s case belongs in that new process, not before the Supreme Court. As a habeas matter, which is its current posture before the high court, Hamdan’s case falls entirely outside the ambit of the statutory language that Charles Lane reports the opposing lawyers are arguing about. And as I argued previously, the proper resolution is a ruling that Hamdan’s present claims cannot be taken up at all by any federal court.
Whatever issues come to dominate the oral argument on Tuesday, the first question for the Court is, can we entertain this case at all? It’s also the last question, because the answer is no.