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Bench Memos

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The Times vs. History



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Has anyone on the New York Times editorial board ever studied constitutional law? I ask because this morning the Times runs an editorial complaining of the “outrageous tampering with the judiciary” contemplated by the Bush administration in its arguments in the case of Salim Hamdan.

What is the “outrageous tampering”? Hamdan is a Guantanamo detainee who challenges the constitutionality of the military panel that held his detention should continue. His case is currently before the Supreme Court. In December the Congress passed, and the president signed, a bill that included the Graham-Levin amendment shutting off access of Guantanamo detainees to the federal courts, except for a single, explicitly described process through the Court of Appeals for the D.C. Circuit. The administration now argues, consistent with this statute, that the Supreme Court no longer has jurisdiction over Hamdan’s case. And contrary to the argument of the Times, the plain terms of the law do withdraw the Court’s jurisdiction over pending cases as well as any that have not yet been filed.

The Times also argues, “If Congress wants to take the extreme step of suspending the Supreme Court’s jurisdiction over habeas corpus, especially pending appeals, it must say so in unmistakable terms, which it has not done.” Oh? The law specifically denies jurisdiction over “an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” How “unmistakable” is that?

But the Times doesn’t stop with misreading the law. However the law is read, the editors want the whole thing overturned as unconstitutional, decrying “court-stripping” as some kind of assault on the Constitution, and blathering on about some alleged assault on habeas corpus by George W. Bush. But it was the Court’s 2004 holding in Rasul v. Bush, that Gitmo detainees have access to U.S. courts, that was the assault on the Constitution, and the Graham-Levin amendment puts a bandage on the wound perpetrated by that holding.

And, to come back to where I started, the Times seems never to have heard of Ex parte McCardle, an 1869 ruling of the Supreme Court that is exactly on point here, holding that when an act of Congress withdraws jurisdiction in plain language, using general terms that do not distinguish between new and pending cases, all cases of either kind must simply come to a halt, as the Court has no more power to decide them. McCardle was even–you may have guessed it–a case involving habeas corpus jurisdiction. If today’s Court respects the valid precedent of McCardle–no sure thing given the Court’s recent history–Mr. Hamdan’s case is already over.



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