Hamdan & Jurisdiction: Cliff Notes Edition
At Blogs for Bush, Mark Noonan addresses the jurisdictional question in the Hamdan case thusly:
[This] seems to say that no judge has an ability to hear a case arising out of the detainees in Gitmo - except the US Court of Appeals in DC, and that only as it relates to appeals of status - ie, someone claiming to not legitimately be deteined in Gitmo (this, I presume, designed to prevent the transfer of a prisoner from the jurisdiction of the US to Gitmo). The Act goes on to say that the DC Court of Appeals shall have exclusve jurisdiction - that seems to mean that once the DC Court has spoken, all judicial appeals are exhuasted.The court's reasoning made sense to me.
Statutory construction is never easy, especially when there are statutory cross-references all over the place, but as I read both the act and the decision (pdf), the basic issue is whether the act excludes pending habeus claims from general appellate jurisdiction. With that in mind, here's how Justice Stevens read it.
This is the summary structure of the act:
(e) the court doesn't have jurisdiction over:
(1) habeus
(2) determinations of the tribunals re: proper detention
(3) final decisions of the tribunals
(h) effective date:
(2) sections (e)(1) & (2) apply to pending cases.
As I read it, and as the court read it, (h)(2) means that the act didn't touch pending habeus cases. If pending habeus cases are also removed from jurisdiction, then there's literally no reason for (h)(2) to exist. It'd be a meaningless subsection that the Congress inserted because they had to make the bill take up 3 pages, and they'd already tried switching to Courier New, but that only got them to 2.75 pages.
That's pretty much where the action is, IMHO, in the jurisdictional question. And, as every other commentator has noted, it's a pretty close call (Scalia's explanation of how the subsection isn't just spacefiller is pretty good - I recommend everyone read the relevant portions of the majority and then Scalia's dissent. It's not easy reading, but it's worthwhile.)
[This] seems to say that no judge has an ability to hear a case arising out of the detainees in Gitmo - except the US Court of Appeals in DC, and that only as it relates to appeals of status - ie, someone claiming to not legitimately be deteined in Gitmo (this, I presume, designed to prevent the transfer of a prisoner from the jurisdiction of the US to Gitmo). The Act goes on to say that the DC Court of Appeals shall have exclusve jurisdiction - that seems to mean that once the DC Court has spoken, all judicial appeals are exhuasted.The court's reasoning made sense to me.
Statutory construction is never easy, especially when there are statutory cross-references all over the place, but as I read both the act and the decision (pdf), the basic issue is whether the act excludes pending habeus claims from general appellate jurisdiction. With that in mind, here's how Justice Stevens read it.
This is the summary structure of the act:
(e) the court doesn't have jurisdiction over:
(1) habeus
(2) determinations of the tribunals re: proper detention
(3) final decisions of the tribunals
(h) effective date:
(2) sections (e)(1) & (2) apply to pending cases.
As I read it, and as the court read it, (h)(2) means that the act didn't touch pending habeus cases. If pending habeus cases are also removed from jurisdiction, then there's literally no reason for (h)(2) to exist. It'd be a meaningless subsection that the Congress inserted because they had to make the bill take up 3 pages, and they'd already tried switching to Courier New, but that only got them to 2.75 pages.
That's pretty much where the action is, IMHO, in the jurisdictional question. And, as every other commentator has noted, it's a pretty close call (Scalia's explanation of how the subsection isn't just spacefiller is pretty good - I recommend everyone read the relevant portions of the majority and then Scalia's dissent. It's not easy reading, but it's worthwhile.)
posted by tm at 10:10 AM
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