Saturday, September 30, 2006

Military Commissions Act of 2006 and judicial review.

I was recently sent this, and I think we'll be seeing it a lot.

The new law very clearly asserts itself to be above the petty jurisdiction of the courts...

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

And paragraphs 2 and 3 aren't really any help.

I was a little curious, so I checked out this "Military Commissions Act of 2006" in original form. On page 58, *right* nearby the quoted paragraphs:
950g:
In general, except as provide in subparagraph B, the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgement rendered by a military commission ...

Obviously if a law is specifying the appellate jurisdiction of that law, it's not going to say: "Or anybody else who decides they want to claim jurisdiction." They specify how the rules are setup, and those rules can be declared unconstitutional. But if not, they specify exactly how any of these actual individual military commission decisions (status or guilt) make their way up to the supreme court. There is no curtailment of judicial power here.


Yeah, the analysis was obviously disingenuous at the source, and that disingenuity has been propagating through the indignant left who haven't read the bill themselves. I don't blame them. If I wasn't suspicious, I wouldn't have looked through all 86 pages myself.

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