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Last June, the U.S. Supreme Court decided Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), holding that Salim Hamdan, a captive of the Afghan war held at Guant�namo Bay, Cuba, could not be tried by military commission: The bare executive order directing such trial violated the Uniform Code of Military Justice and the 1949 Geneva Conventions, the court held. Congress promptly enacted the Military Commissions Act (MCA), effective on Oct. 17, 2006, repudiating much of Hamdan by legitimizing military commissions for the trial of so-called alien unlawful enemy combatants. A provision of the MCA also prohibits judges from granting writs of habeas corpus to aliens like Hamdan. Although the provision is almost certainly unconstitutional, on remand, Hamdan’s petition was wrongly dismissed. Section 7 of the MCA added this provision to the United States Code: “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.” The amendment would apply to all cases “pending on or after the date of the enactment” of the MCA. Hamdan was remanded to Judge James Robertson of the U.S. District Court for the District of Columbia. Hamdan v. Rumsfeld, No. 04-1519, slip op. at 2 (D.D.C. Dec. 13, 2006). On the strength of MCA � 7, the government now moved to dismiss Hamdan (and 180 other pending habeas cases) for lack of subject-matter jurisdiction. There was this not inconsequential difficulty with � 7, however: The Constitution provides that “[t]he 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.” U.S. Const. art I, � 9 cl. 2. As a matter of intention, � 7 surely aimed to extinguish federal subject-matter jurisdiction over Hamdan’s pending petition under 28 U.S.C. 2241, the basic habeas statute; the district court so held on the remand. But the judge also thought that Congress had not expressed a “clear statement” suspending the writ, and that there was not a “Rebellion or Invasion” under way, essential conditions for constitutional legitimation of suspension of the writ. “[T]he Great Writ has survived the Military Commissions Act,” he declared. Inexplicably, however, the judge drew back and proceeded on the assumption, contrary to the above, that MCA � 7 removed � 2241 as Hamdan’s jurisdictional base. For, absent “Rebellion or Invasion,” � 7 should have been held unconstitutional and � 2241 untouched; under Rasul v. Bush, 124 S. Ct. 2686 (2004), statutory jurisdiction was available to an alien at Guant�namo like Hamdan. Alternatively, under I.N.S. v. St. Cyr, 533 U.S. 289 (2001), a leading habeas case, repeal of the statutory remedy without provision for “an adequate substitute” should bring down � 7. That Hamdan was charged as an “enemy” alien should not affect the result; he denied that characterization, an issue of fact to be determined upon return of the writ. Wrong ruling on rights of aliens The judge could have stopped there, but went on to address whether Hamdan, an alien, had direct rights under the Constitution to invoke habeas relief. The judge thought not, and dismissed the petition, referring to cases in which aliens had access to the writ “largely because they resided, lawfully . . . on American soil.” The decisive opinion, the judge thought, was Eisentrager v. Johnson, 339 U.S. 763 (1950), where Germans in China, convicted of war crimes by military commission and imprisoned in Germany, were denied the writ as a constitutional matter because “at no relevant time were [they] within any territory over which the United States is sovereign,” and Hamdan’s “lengthy detention” lacked “geographical and volitional predicates necessary to claim a constitutional right to habeas corpus.” Coming after Rasul and Hamdan, the analysis is not only superfluous but muddled. Rasul held, after all, that because the naval base at Guant�namo was under the “complete jurisdiction and control” of the United States under the 1903 lease granted by Cuba, Cuba’s “ultimate sovereignty” over the base (i.e., the absence of U.S. sovereignty over the base) was immaterial to statutory habeas relief. Moreover, the remedy was “antecedent to statute” and equally available to citizens and aliens at Guant�namo. To be sure, Hamdan’s relation to the United States was hardly “volitional,” a notion derived from U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), where a home in Mexico of an alien forcibly removed to the United States was held to be unprotected by the Fourth Amendment. But Hamdan was a prisoner kept since June 2002 in a facility under the complete control of the United States. He was not in China. And Eisentrager is now a much diminished authority after the Supreme Court’s dispositions of Rasul and Hamdan. The coerced proximity of Hamdan to American territory in a facility under complete U.S. control should render his “volition” quite irrelevant. Joseph D. Becker was a founding partner of New York-based Becker, Glynn, Melamed & Muffly and an adjunct professor of law at New York University.

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