It’s hard to keep up with Andy McCarthy, whose passion for taking the fight to our enemies is matched only by the intelligence of his legal analysis of the issues involved. If you missed his piece yesterday seconding Attorney General Mukasey’s call for Congress to legislate responsibly in the wake of last month’s Boumediene decision, go read it.

And I am still mulling over Andy’s Wednesday article “Suspend the Writ.” But I’m not sure Congress can, so long as Boumediene controls, do what Andy suggests. (It’s even less certain that Congress will do it, even if it can.) Andy says he’s not for “suspending the old writ of habeas corpus, the one that protects all Americans inside the United States,” but only for “suspending the new writ invented on June 12, 2008 . . . [which] runs only to the protection of America’s foreign enemies.”

I agree with Andy that the “new” habeas is a whole-cloth invention of the Boumediene majority, quite distinct from the “Privilege of the Writ of Habeas Corpus” protected by Article I, section 9 of the Constitution. But this is the view of the decision’s four dissenters, and of outside critics such as ourselves. It is not the view of Justice Kennedy and the rest of the Court’s majority. For them, incredible as it seems to us, there is no “new” and no “old,” but just one constitutional habeas corpus: the reach of what is called the Suspension Clause goes all the way to Guantanamo, or, apparently, wherever the United States and its armed forces exercise de facto “control” over a place where wartime detainees are held. The good old habeas corpus constitutionalized by the framers, Kennedy would have us believe, protects enemy combatants held outside American sovereign territory.

Why does this matter? Because it means that it might not be so easy for Congress to correct the Court’s error. Andy says Congress should “suspend the writ outside the United States (where it never ran in the first place) as to all non-Americans (who were never entitled to its protection in the first place).” He notes, rightly, that such a suspension is, after all, authorized in the Constitution, which says the writ “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (Andy’s italics). And inasmuch as “[t]he United States was invaded on September 11, 2001,” the conditions have existed ever since for such a congressional suspension.

I think that is so, just as Andy does. (Actually, we both think that the Suspension Clause is wholly inapplicable to the cases of the Gitmo detainees, for reasons Justice Scalia gives in his Boumediene dissent. But if one must play along with Kennedy’s mistaken premises . . .) Let us imagine that Congress too believed that (limited) suspension of habeas corpus was a good idea. This would not be the end of the matter, but only the beginning of another confrontation with the Supreme Court that Congress and the presidency (and the war effort, and the American people) could well lose to the Court.

In Boumediene, Justice Kennedy several times noted that the recent congressional enactments at issue, the Detainee Treatment Act and the Military Commissions Act, were not “formal” suspensions of habeas corpus. That is, they did not in terms purport to take away the habeas privilege from the enemy combatant detainees. This would seem to leave the door open for a formal suspension, of the kind Andy suggests. But at the very outset of his opinion for the Court, Kennedy wrote that because the DTA/MCA “procedures are not an adequate and effective substitute for habeas corpus, “[t]herefore” the MCA’s denial of habeas jurisdiction to the civilian courts “operates as an unconstitutional suspension of the writ.”

Do we have reason to believe that an explicit, formal habeas suspension passed by Congress–with the approved “Simon says” language–would survive the inevitable challenge in the courts? I would not be sanguine about it. It is more than possible that a majority of the justices would repeat the mistake made by Justice David Davis in his opinion for the Court in Ex parte Milligan (1866)–namely, the mistake of believing that the final authority on whether suspension is “require[d]” for the “public Safety” belongs to the Court and not to the Congress. This presumption was unnecessary to the decision in Milligan, and was rejected by four justices in the concurring opinion of Chief Justice Salmon P. Chase, who rightly argued that in wartime the conclusive judgment on suspension belongs to the Congress.

I would place no bet on the good sense of Justice Kennedy and four of his colleagues in this matter. It would be dismaying but not surprising if they were to hold that a) the authority to say when suspension is justified rests ultimately with themselves, and b) that suspension is not justified in the cases of our current detentions of unlawful enemy combatants. Such a declaration, of course, would be another blow to the Constitution, and another instance of the judicial over-reaching denounced by Chief Justice Roberts and Justice Scalia in Boumediene. As Roberts said, that decision was “not really about the detainees at all, but about control of federal policy regarding enemy combatants.” More broadly, it was about the maintenance of what Scalia called “an inflated notion of judicial supremacy.”

At this late date in the progress of that “inflated notion,” there is nothing I would put past this Court as currently constituted.