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BACK TO THE COURT? The detainee bill passed by the Senate yesterday came as a result of the Supreme Court's Hamdan decision, so some obvious questions now include whether this bill will itself end up being looked at by the Court, what the prospects are for it being struck down, and what the grounds would likely be for that action. Scott Lemieux thinks the odds are overwhelming that the Court will not find this bill unconstitutional (adding as a crucial grace note that "that opponents of this scandalous legislation should not use the courts as a crutch"). The Washington Post's write-up today includes some scholars who think questions might be raised on 14th amendment "equal protection" grounds, regarding the provision declaring conspiracy to be a war crime, and, especially, regarding the elimination of habeas corpus rights. Even a Pepperdine University prof who supports the bill told the Post that he thinks the habeas corpus provision might not stand up in court. Speaking of "using the courts as a crutch," the reservation about the habeas corpus provision is shared by...some of the more spineless senators who nevertheless still voted for the bill, as The New York Times notes:
Even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation because of the provision barring court detainees� challenges, an outcome that would send the legislation right back to Congress.Ah, a true profile in courage. It's a real shocker that the Democrats' equally courageous "count on the fraud caucus pulling through" strategy didn't pay off either!�We should have done it right, because we�re going to have to do it again,� said Senator Gordon H. Smith, Republican of Oregon, who voted to strike the provision and yet supported the bill.
As always, continuous highly-informed shrillness on the subject can be found here.
--Sam Rosenfeld
