I want my habeas corpus
October 1, 2006 5:53 PM   Subscribe

How, with our system of law, can the Military Commissions Act be repealed?

As I understand it, when Bush signs the bill there is still a chance the courts could overturn it. How does that work? Does the ACLU or another entity need to sue the U.S. for it? What happens if the courts overturn it? Does Congress need to write a new law? What if the courts don't overturn it? Can we, the people, sue the U.S. about it?
posted by frecklefaerie to Law & Government (25 answers total) 4 users marked this as a favorite
 
I'm just a bill
posted by Steve_at_Linnwood at 6:54 PM on October 1, 2006


With all due respect, unSane... hellishly complicated.

A House and Senate under Democratic control could pass legislation overturning the law, but Bush would likely use a signing statement or perhaps even a veto to nullify any such attempt... and though the Democrats may well make hellishly significant gains if the Republican implosion continues, veto-safety isn't remotely attainable.

I'm not a lawyer so I'm not prepared to render an informed opinion over who has standing to sue... but I suspect that a legal challenge will take the form of an advocacy group assisted by high-powered lawyers working as proxy for a random Gitmo inmate.

Then again, since the blatantly unconstitutional suspension of Habeas Corpus could conceivably be applied to an American citizen (so long as the President declares them as such) it's possible that any citizen might technically have standing to sue for preemptive relief.

Once it reaches the Supreme Court, the jurists will hear arguments from both sides (with the Attorney General or agents thereof defending the law) before rendering a majority opinion, which will validate or nullify the bill, and (more importantly) explain why that decision was reached.

At that point Congress would either let the matter drop (which is the most likely course with the Democrats in control) or pass a revised version.

I'm fairly certain that this particular law will quickly be judged unconstitutional; the constitution itself says that habeas corpus may only be suspended during an invasion (Muslim Extremist infiltration does not qualify) or rebellion, and neither are occurring at the moment.
posted by The Confessor at 6:58 PM on October 1, 2006


>> As I understand it, when Bush signs the bill there is still a chance the courts could overturn it. How does that work?

The courts review a case that calls the law into question on its constitutional grounds.

>> Does the ACLU or another entity need to sue the U.S. for it?

Somebody needs to sue somebody to bring the issue before the courts, yes. Then you go up the chain to the Supreme Court. This can take years, and the Supreme Court can even refuse to hear it if there's no constitutional issue at stake.

>> What happens if the courts overturn it?

The law becomes largely unenforceable and therefore largely moot. For example, the Roe v. Wade decision defanged existing state laws banning abortion. Those state laws might still be on the books, but there's no point enforcing them now. Subsequent legislatures can remove the laws from the books, and/or write new ones.

>> Does Congress need to write a new law?

They can always do that, with or without the courts. They can write laws to supercede old laws. Happens all the time.

>> What if the courts don't overturn it? Can we, the people, sue the U.S. about it?

Yes, you can.
posted by frogan at 7:00 PM on October 1, 2006


>> What if the courts don't overturn it? Can we, the people, sue the U.S. about it?

What I mean is, if you have standing, you can. You can't just sue someone for the hell of it. You have to have suffered some kind of a damage first.
posted by frogan at 7:01 PM on October 1, 2006


This law was passed as a response to the SCOTUS Hamdan (sp?) decision. SCOTUS said that the President alone didn't have authority to establish military tribunals for this purpose, but Congress did. So the President went to Congress and asked them to do so. This bill is the result.

Thus the mere fact that it establishes military tribunals etc. is not going to be grounds for judicial nullification. SCOTUS already said that was OK, as long as it was done with authorization of Congress. Since this law was carefully crafted to respond to that SCOTUS decision, then there's very little chance that SCOTUS will overturn it. (Though you never really know.)

It should probably also be pointed out that about half the Democrats voted for this bill, primarily because it is very popular with the majority of voters (who are not like typical Metafilter participants). I think I saw a poll to the effect that about two thirds of Americans were in favor of this, and that's not something the Democrats can ignore.

The Republicans have been pushing the line that the Democrats are more worried about the safety of terrorists than they are about the safety of Americans. We'll stipulate that it's a slander, but if the Democrats, upon attaining a majority in both houses of Congress were immediately to try to repeal this law, it would tend to confirm that idea, and thus the Democrats are not likely to make the attempt even if they are in majority, since it could well cost them the following election. And, of course, if they only manage to come up with a majority in one chamber, there would be no chance of such a law passing Congress. But even if they had a majority in both chambers, they would face an almost certain veto, and no plausible scenario gives them a majority sufficient to override a veto in the 2006 election.

All of which is to say that the chance of this law being nullified or repealed in the immediate future (the next two years) is nil.
posted by Steven C. Den Beste at 7:13 PM on October 1, 2006


This can take years, and the Supreme Court can even refuse to hear it if there's no constitutional issue at stake.

Actually the Supreme Court can refuse to hear it for any reason at all and never tell us why.
posted by Xalf at 7:15 PM on October 1, 2006


You have to have suffered some kind of a damage first.

Which is what makes this all particularly hairy, since the bill itself tries to take away the ability to sue from people who might have suffered damages. Under the new law, non-citizens have no right to sue in court -- the revocation of habeas corpus -- and citizens only have right to sue after they endure the military tribunal process first. So it's unclear to me what the path to the courts will be under challenges to the new law.

(All that being said, apparently last week this all might have become a lot easier when the Hamdan case was remanded back to the U.S. District Court "for further proceedings." It's unclear what that means, but it's clear that the remand order gives the District Court a lot more broad of an ability to review the case under the light of the newly-passed law, and make decisions about the law in ways that the Bush Administration might not have anticipated.)

I, for one, am incredibly interested in how this will all play out over the coming weeks. I fear that there will be a point when the Executive and Legislative branches devise a bill that is truly "court-proof" -- and that's what frightens me the most.

On preview: SCdB, there are a lot more issues at stake than the military tribunals, and those tribunals aren't at issue in some binary state (they're OK or not OK). The Court appears to be interested not just in who authorizes them, but what protections they afford; it's unclear if the Court would ever be OK with tribunals that remove or defer habeas protections, for example, and it's equally unclear if the Court would be OK with the fact that the Executive has unfettered discretion as to the definition of "military combatant" (the people for whom the tribunals have importance). This is all to say that this thing isn't going away, but it might be harder for someone to prove standing to bring it in front of the court (or the Court). Here's hoping for the power of that remand...
posted by delfuego at 7:21 PM on October 1, 2006


Any court challenges would most likely be narrowly drawn, based upon appropriate standing. (The lawyers for Guantanamo detainees said they'd be filing 'within days', presumably on the same basis as Hamdan.) There are likely to be arguments over whether Congress has successfully hamstrung the courts' jurisdiction to hear cases. And any judgement is likely to affect only the portion of the act challenged in the case at hand, although it's certainly within the remit of the Court to tell Congress 'sorry, try again'.

In other countries, constitutional courts are empowered to judge the constitutionality of laws in the abstract before they're enacted; the US Supreme Court's jurisdiction is limited by Article III to actual cases and controversies.
posted by holgate at 7:31 PM on October 1, 2006


The doctrine the questioner is interested in is called judicial review.

Does the ACLU or another entity need to sue the U.S. for it?


Whoever sues--the ACLU, or whomever--has to show standing to sue. Typically this means they were injured by the law in some way (or that they represent someone who was injured.) You can't just sue because "man, that's f-ed up." It is highly unlikely, considering this law follows the Hamdan decision, that the entire law would be thrown out. If some part of the law is unconstitutional, then the court can strike down just that part.

What if the courts don't overturn it?
Then it's not unconstitutional. As the Court once said, "The Constitution does not provide judicial remedies for every social and economic ill."
posted by Brian James at 7:32 PM on October 1, 2006


What if the courts don't overturn it? Can we, the people, sue the U.S. about it?

Yes, that suit takes the form of armed revolution. If the courts don't overturn it (they won't), and Congress doesn't repeal it (it won't), we, the people, have run out of options.

Don't you love imperial democracy?
posted by Netzapper at 7:44 PM on October 1, 2006


It is highly unlikely, considering this law follows the Hamdan decision, that the entire law would be thrown out.

There's a pretty standard boilerplate that Congress includes in all bills which states that if part of the bill is nullified by the courts, the remainder is not affected by that decision and remains law. I'm sure it was included in this one, too.

Delfuego is right that there may be specifics and details of this law that will still be considered interesting for judicial review, but the top level concept of establishing military tribunals for this purpose, as such, almost certainly will not be subject to challenge, because of the Hamdan decision.

Anyway, keep in mind that there is internet time (blazingly fast), real time (normal) and legal time (glacially slow). An expedited legal review will take a year. A normal process of review, appeal and review again would probably take three years to reach SCOTUS who may or may not grant certiorari.

And in the end it's really unlikely that any such decision would outright gut this law.
posted by Steven C. Den Beste at 8:28 PM on October 1, 2006


By the way, I'd like to commend everyone for staying on subject and not turning this thread into a rant about the bill itself.
posted by Steven C. Den Beste at 8:35 PM on October 1, 2006


Re: standing. Is there precedent for a suing on someone's behalf without them requesting it beforehand? I'm envisioning a scenario where, for example, Amnesty International or the ACLU brings a suit on behalf of Prisoner X held at Gitmo; the court then orders that Prisoner X be offered AI or ACLU's representation. In other words, "He would want our representation if he could express that. Please give us the opportunity to get that desire expressed."
posted by spaceman_spiff at 8:37 PM on October 1, 2006


Under the new law, non-citizens have no right to sue in court -- the revocation of habeas corpus

Habeas corpus suspension already legally exists in a number of scenarios. For example, if you are a foreign national and commit a crime in the United States, you most likely get deported after an often lengthy jail stay and no real "trial" in the way that we think of one. You can't post bail, get out and come back later.

And besides, non-citizens already don't enjoy certain rights, and don't have legal access to courts, by their very nature of being non-citizens. That's kinda the point -- they're not citizens.

Now if you want to re-write citizenship laws ... different deal altogether.

Is there precedent for a suing on someone's behalf without them requesting it beforehand?

Not really. You can't sue someone on the grounds that they have damaged someone else but have not damaged you. I can't sue O.J. for killing Ron Goldman. However, Ron Goldman's father can (and did) sue O.J., but here we see that the Goldman family did suffer a damage -- that is, not having Ron around.
posted by frogan at 8:48 PM on October 1, 2006


Is there precedent for a suing on someone's behalf without them requesting it beforehand?

Yes, there is a precedent that you cannot do it. They have standing; you do not. If they ask you to represent them, then you become their agent. If they do not ask, then you are not their agent.
posted by Steven C. Den Beste at 8:50 PM on October 1, 2006


LectLaw is a nice reference on the law. Here's what they have to say about "standing":

==========

STANDING - The legal right to initiate a lawsuit. To do so, a person

must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.

There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (Lujan). The party invoking federal jurisdiction bears the burden of establishing each of these elements. Id.

In deciding whether xxx has standing, a court must consider the allegations of fact contained in xxx's declaration and other affidavits in support of his assertion of standing. See Warth v. Seldin, 422 U.S. 490, 501 (1974) (Warth). see also Warth, 422 U.S. at 501 (when addressing motion to dismiss for lack of standing, both district court and court of appeals must accept as true all material allegations of the complaint and must construe the complaint in favor of the party claiming standing).

Standing is founded "in concern about the proper--and properly limited--role of the courts in a democratic society. " Warth, 422 U.S. at 498. When an individual seeks to avail himself of the federal courts to determine the validity of a legislative action, he must show that he "is immediately in danger of sustaining a direct injury." Ex parte Levitt, 302 U.S. 633, 634 (1937). This requirement is necessary to ensure that "federal courts reserve their judicial power for `concrete legal issues, presented in actual cases, not abstractions.' " Associated General Contractors of California v. Coalition for Economic Equity, 950 F.2d 1401, 1406 (9th Cir. 1991) (quoting United Public Workers, 330 U.S. at 89), cert. denied, 112 S. Ct. 1670 (1992). National Environmental Policy Act (NEPA), 42 U.S.C. S 4331, et seq.

Someone who seeks injunctive or declaratory relief "must show `a very significant possibility' of future harm in order to have standing to bring suit." Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir. 1990), cert. denied, 112 S. Ct. 875 (1992).
posted by Steven C. Den Beste at 8:59 PM on October 1, 2006


Is there a way to sue if you are harmed by the law, though? It seems to me that if you break this law then you could be imprisoned indefinitely since you would be tried by secret military police.
posted by frecklefaerie at 9:02 PM on October 1, 2006


Is there a way to sue if you are harmed by the law, though? It seems to me that if you break this law then you could be imprisoned indefinitely since you would be tried by secret military police.

From the Washington Post: "The bill ... (requires) that defendants accept military defense attorneys."

So, yes, you would have defense attorneys. Don't knock it. Hamdan was represented by military defense attorneys.
posted by frogan at 9:36 PM on October 1, 2006


Yes, there is a precedent that you cannot do it. They have standing; you do not. If they ask you to represent them, then you become their agent. If they do not ask, then you are not their agent.

Yes, I understand this. My question is more along the lines of, is there any way that legal action can be pursued on behalf of someone who doesn't have these actions available to them? A prisoner being held incommunicado, for instance - assuming they didn't retain counsel in advance.
posted by spaceman_spiff at 9:53 PM on October 1, 2006


A prisoner being held incommunicado, for instance - assuming they didn't retain counsel in advance.

I would presume that there would be a legal precedent for this person's family to make some kind of claim to the denial of this person's presence -- the O.J./Ron Goldman example I gave above. But this doesn't challenge the law head-on (apply directly to the forehead) so much as make a completely different kind of claim.
posted by frogan at 10:07 PM on October 1, 2006


For example, if you are a foreign national and commit a crime in the United States, you most likely get deported after an often lengthy jail stay and no real "trial" in the way that we think of one.

That's a slightly different issue, since every non-citizen is admitted under a sliding scale of conditions, the breach of which can lead to deportation.

My question is more along the lines of, is there any way that legal action can be pursued on behalf of someone who doesn't have these actions available to them?

Well, Congress has been trying its hardest to prevent that from happening. But one also has to consider the degree to which the judiciary isn't immune from a particular type of politics: that is, resistance to legislative encroachment on what it considers its turf. Hamdan didn't address the constitutionality of the 2005 Detainee Treatment Act's denial of habeas because the statute itself had enough holes in it; any future case (perhaps even a re-heard Hamdan) is likely to do so.
posted by holgate at 10:37 PM on October 1, 2006


One quick addition:

And besides, non-citizens already don't enjoy certain rights, and don't have legal access to courts, by their very nature of being non-citizens. That's kinda the point -- they're not citizens.

Constitutional references to 'the people' or 'persons' generally apply to citizens and non-citizens alike. Non-citizens certainly do have 'access to courts' in the vast majority of circumstances where there's no explicit legislative prohibition.
posted by holgate at 10:47 PM on October 1, 2006


Constitutional references to 'the people' or 'persons' generally apply to citizens and non-citizens alike.

Not exactly. It applies to citizens and legal residents. The extent that it applies to others varies and depends on circumstances. Generally speaking it applies the least to enemy combatants.

Yes, I understand this. My question is more along the lines of, is there any way that legal action can be pursued on behalf of someone who doesn't have these actions available to them? A prisoner being held incommunicado, for instance - assuming they didn't retain counsel in advance.

It's been tried, but generally the courts have taken a dim view of that primarily because it amounts to meddling by outside parties without legal standing, which Article III of the constitution is not supposed to permit.

What they usually do is sue on their own behalf or on behalf of relatives for access to the prisoner, and if they're granted it and see him they ask for permission to represent him in court, which if they get it then gives them proxy standing to pursue the main point at issue.
posted by Steven C. Den Beste at 11:33 PM on October 1, 2006 [1 favorite]


it amounts to meddling by outside parties without legal standing,

Isn't this the role of the amicus curiae? Of course, to file one of these, the case has to be in court already. There's no way I know of to get a case to court if you're not an involved party.
posted by ikkyu2 at 2:09 PM on October 2, 2006


Of course, to file one of these, the case has to be in court already.

True, but moreover, amicus curiae briefs don't carry any legal weight in and of themselves, although they can be (and are) considered as additional context to a decision, and are especially useful on appeal.

That doesn't get you out of jail any faster, though. ;-)
posted by frogan at 2:24 PM on October 2, 2006


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