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The Constitution, Writ or Wrong

The habeas corpus debate illustrates a dangerous trend in legal ignorance.

12:00 AM, Oct 5, 2006 • By ADAM J. WHITE
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Rasul thus reinforced that although the Constitution sets a minimum "floor" of habeas protection that cannot be rescinded absent circumstances of (as the text puts it) "invasion" or "insurrection," Congress can by statute raise the level of coverage--as it did, according to the Court, for overseas alien prisoners.

For that reason, Justice Souter appeared to oversimplify at the 2005 oral arguments of Hamdan v. Rumsfeld, when he rebuked the solicitor general: "Now wait a minute. The writ is the writ. . . . There are not two writs of habeas corpus for some cases and for other cases." Eisentrager and Rasul counsel to the contrary--Section 2241 carried the writ where the Constitution did not.

WHICH BRINGS US to the MCA debate. Section 6 of the MCA amends 28 U.S.C. 2241 to rescind the availability of habeas relief to alien detainees held by the United States--either as enemy combatants or awaiting such determination. The amendment rolls back the protections extended to Guantanamo prisoners by the Court's reading of Section 2241 in Rasul, recalibrating the writ to the level of protection afforded in Eisentrager.

Why, then, do critics describe the MCA as an affront to the Constitution? Do they really mean that if Congress increases the coverage of the writ beyond its constitutional foundation, then subsequent revision back toward the constitutional floor is a "suspension" of the writ? Such a position would imply that the constitutional clause is a one-way ratchet: Congress can expand the coverage of the writ--even by accident--but it cannot restore the narrower coverage. Under this reading, Congress effectively amends the Constitution by redefining the "privilege" of the writ of habeas corpus whenever it expands the writ's coverage.

An alternative explanation would be that critics simply aren't aware of Rasul's bifurcation of the protections of habeas under the Constitution and Section 2241, and they read Rasul to be a statement of constitutional, not merely statutory law. That would be a disconcerting development. If Congress is to react effectively to Supreme Court decisions, its members must be able to discern which decisions are within their power to reverse (i.e., statutory ones) and which are not (i.e., constitutional ones).

No doubt, we should laud any congressman who takes the Constitution seriously in debating legislation. But if Leahy, Pelosi, Specter, and other critics wish to contribute to a productive discussion of this legal issue, then they must clarify what their precise criticism is: That habeas corpus is a one-way ratchet, constantly expanding the constitutional protections afforded overseas alien prisoners? Or that they don't care to observe the fundamental distinction drawn by the Court in Rasul?

Adam J. White is an attorney. His article on Justice Robert H. Jackson's draft opinions in The Steel Seizure Cases will appear in the Albany Law Review later this year.