Before and After

Here is section 2241(e) of title 28 of the United States Code (there are actually two of them, apparently because of some frantic drafting that went on with the Detainee Treatment Act of 2005, the last time that John McCain folded like a cheap umbrella) before the Military Commissions Act of 2006:

(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005 [10 USCS § 801 note], no court, justice, or judge shall have jurisdiction to hear or consider--

(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

(A) is currently in military custody; or

(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.

[(f)](e) Except as provided in section 1405 of the Detainee Treatment Act of 2005 [10 USCS § 801 note], no court, justice, or judge shall have jurisdiction to hear or consider--

(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

(A) is currently in military custody; or

(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1405(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.

Here is how these sections will read after the amendments contained in the Military Commissions Act of 2006:

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Wow, what's this all about, Spotty?

Oh, sorry grasshopper, this is language from the United States judicial code relating to the writ of habeas corpus. The subsections of section 2241 prior to (e) address the grant of the writ, procedure for application for it, etc. Incidentally, Spot could only get the old language from Lexis, which he cannot link to, and the new language is from a pdf that somebody sent to Spot, so there are no links to provide for the old subsection (e) or the new, sorry.

What follows leans heavily on what was written by Spot in Dissing the Great Writ and Dissing the Great Writ II. You might want to read those posts if you haven't already.

The old language is pretty well, amateurish, compared to the new. While the old language removed court jurisdiction only for habeas corpus petitions for prisoners at Guantanamo Bay detained by the Defense Department, the new language covers any detention by any agent of the US anywhere. (Think secret CIA prisons that the administration told us didn't exist until the fact of their existence was leaked.) The only two conditions are that the person (only aliens or permanent resident ("green card") aliens) be "properly detained" as an enemy combatant or "awaiting such determination."

These status determinations are made pursuant to the Detainee Treatment Act of 2005 passed in the wake of Hamdi v. Rumsfeld.

One issue that is interesting to Spot is whether our present circumstances warrant the invocation of the Suspension Clause:

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.

Article I, Section 9, Clause 2, US Constitution.

Did the attacks of September 11, 2001 amount to an "invasion," and if so, when will we be un-invaded?

Update: There are of course also detention centers in Iraq and Afghanistan currently holding thousands of detainees.

Tags: habeas corpus