Jordan Paust [University of Houston Law Center]: "The Constitution expressly mandates that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it." U.S. Const., art. I, s. 9, cl. 2. During the formation of the Constitution, there had been a proposal by Charles Pinckney that suspension shall not occur "except upon the most urgent and pressing occasions" (emphasis added), a phrase relevant to the restrictive meaning of the word "require" that was finally adopted by the Framers even though the "occasions" were expressly limited to two (i.e., rebellion and invasion).
While there are attempted suspensions of habeas corpus in two places within the Military Commissions Act of 2006 (MCA), there was no rebellion or invasion at the time of the law's enactment. Moreover, suspension of habeas corpus had not been required in the five years since 9/11 and for two years after the decision of the Supreme Court in Rasul v. Bush. The attempted suspensions of habeas in the 2006 Act are additionally without limits concerning time, place, necessity, or invasion. Thus, the attempt in Section 7(a) of the MCA to suspend habeas corpus is contrary to constitutional textual strictures and structural limitations on governmental power and is therefore ultra vires. The attempt in Section 5(a) to suspend habeas for any person (citizen or alien), here or abroad, in time of peace or war, regardless of any alleged necessity due to invasion, and at all times in the future with respect to claims under the Geneva Conventions suffers from the same constitutional impropriety. Congress has exceeded its lawful power by suspending habeas indefinitely, when not required, and when there has been no rebellion or invasion.
In Hamdan v. Rumsfeld (D.D.C. Dec. 13, 2006), the district court correctly found that "[t]he MCA is not a constitutionally valid suspension of the writ of habeas corpus," since "[n]either rebellion nor invasion was occurring at the time the MCA was enacted," as required by the Constitution. It noted that Congress had previously suspended habeas only four times and that each suspension was "accompanied by clear statements expressing congressional intent to suspend the writ and limiting suspension to periods during which the predicate conditions (rebellion or invasion) existed." However, the district court thought that "Congress's removal of jurisdiction from the federal courts was not a suspension of habeas corpus," but a "removal" without limits, and merely a "jurisdiction-stripping" denial of Hamdan's "statutory access to the writ." This appears to be plain sophistry and ignores the fact that Congress simply has no constitutional authority to suspend or indefinitely remove habeas corpus in this instance. More particularly, the Framers did not allow Congress to terminate habeas and a claim that "termination," which can be operative only until the next Congress (or the present Congress) changes the legislation, is not "suspension" is patently silly. Similarly nonsensical is a claim that legislation is not suspending habeas when it suspends (or terminates) the jurisdiction of federal courts to hear habeas claims.
Recognition that there is a lack of congressional authority and that relevant provisions of the Act are ultra vires does not address other problems, such as the fact that treaties of the United States guarantee the right of access to courts and to judicial review of the propriety of detention (see, e.g., 44 Harv. Int'l L. J. 503 (2003), cited in Hamdi); that there was no clear and unequivocal expression of congressional intent to override such treaties, and that therefore under venerable Supreme Court rulings the treaties have primacy; and that, in any event, the "rights under" a treaty and the law of war exceptions to the last in time rule also guarantee the primacy of relevant treaty law of the United States (as documented in my treatise, International Law as Law of the United States 99, 104-09 (2 ed. 2003)). "