Professor Bainbridge...on law, politics, religion, culture & food

But the Military Commissions Act was not directed primarily to the Supreme Court but to lower federal courts, where the exceptions clause does not apply.

This is wholly unconvincing. The Madisonian Compromise permits Congress to abolish inferior federal courts, and as numerous Supreme Court Justices have noted, “The greater power includes the lesser.” If Congress can abolish inferior federal courts, it can fine tune their jurisdiction in those areas not explicitly guaranteed in Article III. Furthermore, as a matter of analytics, whether state courts could hear habeas claims is totally irrelevant to whether Congress can restrict the Supreme Court’s appellate jurisdiction of habeas claims by preventing inferior federal courts from initiating habeas proceedings. Lastly, Epstein provides no evidence for the claim that Congress could not make habeas claims exclusive to federal courts, so his reference to state courts is bizarre.

The question is whether our government has effective power, and if it has it over citizens abroad, it has it over aliens abroad.

The argument that our government must have such power over aliens because it has such power over citizens would seem to be a greater includes the lesser argument. If our government has more power over aliens than citizens, then citizens have more rights than aliens. But if Epstein concedes that citizens have more rights than aliens, then he refutes his own question-begging about the “lack of distinction between citizens and aliens in the Suspension Clause”. (Perhaps there is “no distinction” because it is self-evident that our government has more power over aliens than citizens.) Not to mention his reliance on Munaf destroys his claim that his argument is an originalist one, because reliance on a week-old opinion that, by all accounts, broke new legal ground, is not originalism.

and as numerous Supreme Court Justices have noted, “The greater power includes the lesser.”

Not always, as other decisions have shown in various contexts.  Anyway, to make the courts unable to hear habeas claims is indistinguishable in practice from suspending the Writ.

Anyway, to make the courts unable to hear habeas claims is indistinguishable in practice from suspending the Writ.

The problem with this assertion is that it fails to define “the courts”. One of my express points is that one can strip habeas from the inferior federal courts without stripping it from state courts or the Supreme Court, and one can make habeas exclusive to federal courts. While you might be correct that stripping all state courts, all inferior federal courts, and the Supreme Court is equivalent to suspending the Writ, simply stripping one of those, or one subset of those, of jurisdiction is not equivalent to that. So your equivocation on what “the courts” means renders meaningless your claim that stripping the courts is “is indistinguishable in practice from suspending the Writ”—it depends on what “the practice” is.

Not always, as other decisions have shown in various contexts.

This is not a vindication of Epstein’s argument, it’s just an unsubstantiated assertion.

"nothing could be clearer that the Constitution imposes limitations only on the United States government”

Nothing could be clearer than that the United States Constitution applies to United States citizens, but I notice that the courts and “Constitutional experts” manage to miss that point all the same.

This whole “persons includes non-citizens” argument is a hold-over from slavery days. I has no place in the modern American Constitution.

“But at the very least the suspension clause means that some judge somewhere has to have oversight over the process.”

I’d love to get a hold of the copy of the Constitution which Epstein is working from, because mine says nothing of the sort. There is nothing in the Constitution to say or even suggest that “some judge somewhere has to” stick his nose into every aspect of government, including those which are explictly given to other branches of government.

Epstein seems to be proceding from what might be called the Papal view of legal interpeatation - nobody can have any idea as to the legality of some action until such time as a judge reveals it to us.

to make the courts unable to hear habeas claims is indistinguishable in practice from suspending the Writ.

Nonsense. To make the courts unable to hear any habeas claims from American citizens would be suspending the Writ. Stripping their (arguably already non-existent) power to hear habeas claims from foreign illegal fighters is hardly “suspending the Writ”, even by the most generous interpetation. By that definition we rountinely suspended the writ in all previous wars.

It is important to note that illegal combatants are not protected by the Geneva Convention. This was deliberate policy of drafters of the Geneva Convention, so that there would be strong incentives for any combatant to follow the minimal rules called for by the Convention, in return for the protection provided by the convention. We know how Al Queda treats captured soldiers, how they intentionally murder women, children, and other non-combatants. Extending even Geneva Convention status to them is a travesty, and removes any incentive for them to begin to follow the Convention rules.

As illegal combatants they deserve only our condemnation, our contempt, and as harsh treatment as we can devise. I would withhold summary execution, only because I would desire that they suffer more pain than execution would furnish. I would reverse that policy only if they stopped targeting women, children, and other non-combatants, if they began to treat prisoners in accordance with the convention, and if they began to wear recognizable uniforms distinguishable at a distance. All these things are required by the Geneva convention.

To provide habeas rights, far beyond those ever provided to any legal combatants merely gives them incentives to continue their illegal ways. To permit the Supreme Court to rule in fields where their jurisdiction has been stripped by law, also encourages more horribly wrong decisions of the Dred Scott/Hamadi/Boumediene variety.

Legislation that said ‘the Supreme Court is deprived of jurisdiction to consider habeas cases brought by particular aliens held in a particular jail’ would look an awful lot like a Suspension.  Hey, did the SG argue Exceptions in his brief?

http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2008/06/23/doing_battle_with_due_process/

Nothing could be clearer than that the United States Constitution applies to United States citizens, but I notice that the courts and “Constitutional experts” manage to miss that point all the same.

I’m not aware of any argument that the Constitution does not apply to US citizens.  If you’re saying that the Bill of Rights only applies to citizens, I’m going to have to see some text.  And an explanation for the use of ‘any person’ to mean ‘any citizen.’

I finally have the answer:  Congress should make the Supreme Court itself the only jurisdiction where these habeas claims (that is, claims from people detained as part of action in Afghanistan or Iraq) can be heard.

Yes, that means the Court will either have to handle more than 80 or so cases a year or that the Court will have to accept fewer appeals.  But it also means that the Supreme Court will have an incentive to avoid making decisions for political gain.

Don Meaker sez: ‘It is important to note that illegal combatants are not protected by the Geneva Convention.’

Also important to note that, as a practical matter, legal combatants, if American, have never been protected by the convention anywhere in Asia.

Whatever the jurisconsults in Switzerland said, no one controlling American prisoners in Japan, China, North Korea, the USSR, Vietnam, Cambodia, Afghanistan, Iran or Iraq ever paid them the slightest bit of attention.

For that reason, arguments about treatment of prisoners at Guantanamo always have a flavor of insanity to me.

"If you’re saying that the Bill of Rights only applies to citizens, I’m going to have to see some text.  And an explanation for the use of ‘any person’ to mean ‘any citizen.’ “

It would be rather peculiar if the “persons” mentioned in the US Constitution refered to “all human beings”, would it not?

I’m not sure what text you are looking for, but lets look at actual instances of “persons”.

AMdt 4: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated etc”.

Is it your contention that all people on earth have this right, and that it is enforcable in a US court? The writers of the Constitution understood “persons” to refer to “American persons”. Even the 14th AMdt, written later, was crafted to exclude non-Americans. At the time that even excluded American Indians.

"Legislation that said ‘the Supreme Court is deprived of jurisdiction to consider habeas cases brought by particular aliens held in a particular jail’ would look an awful lot like a Suspension.”

No, it does not look anything like suspension. Nothing in the Constitution gives habeas rights to non-Americans, so “depriving” them of this does not invoke the Constitution at all.

Mr Destro, are you contending that, say, a foreign tourist in New York City could be tried multiple times for the same offense? That if he were tried for a crime, he could be compelled to testify?

How about property seizures?… that’ll be just great in the global economy, if foreigners’ property can be seized without compensation.

Something tells me your claims are a little overbroad. Make that, very overbroad.