A blow to liberty, and law

The federal Court of Appeals for the District of Columbia has upheld the part of the Military Commissions Act that denies courts the right to hear cases arising out of the detentions at Guantanamo Bay (and any secret prisons that the US may be running here and there around the world).

The Constitution is pretty clear about habeas corpus: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

You might think that it doesn't take a lawyer to figure out that Congress and the President can't get around this provision by saying that courts may not hear a case in which a writ of habeas corpus is sought. I mean, if the right to the writ cannot be repealed unless we're invaded or there's an armed rebellion (and it's pretty clear that even then the repeal is only in areas actually affected by the revolt), how can the same result be achieved by keeping the case out of court?

Only through the subtlety of "legal reasoning."

I won't go into the argle-bargle that two judges used to get around the clear language of the Constitution. Instead, I'll quote from the dissent by Judge Judith W. Rogers:

"When a court has no jurisdiction, it is powerless to act. But a statute enacted by Congress purporting to deprive a court of jurisdiction binds that court only when Congress acts pursuant to powers it has derived from the Constitution."

Game, set, match.

At the turn of the last century, Finley Peter Dunne had his Mister Dooley observe that "whither th' Constitution follows the flag or not, th' Supreme Court follows the illiction returns." The Supreme Court will have the last word on this case. Will the court listen to the people's voice last November? If not, we shall all take another long step on the road to lawlessness.