Daily Kos: Habeas Corpus: The Definitive (Heh) Diary (Good News)

by neoperiapt

Sat Oct 07, 2006 at 04:26:50 AM PDT

Much has been written lately regarding the writ of habeas corpus and the Military Commissions Act of 2006. Unfortunately, a fair amount of that has been wrong to varying degrees on the law although the sentiment has been correct. In this diary I will give you a summary of the law, clarify the issues, and predict whether SCOTUS will accept habeas petitions post-MCA (they will). Also, I will give you some helpful resources for the non-lawyers who write on legal topics. Read on until your eyes glaze over:

The issue arises, of course, because many if not all of the Guantanamo detainees were being held without any judicial review whatsoever (or any review by anyone that we know of), and the legal mechanism for challenging unlawful detention absent trial and appeal is the writ of habeas corpus. In a series of three cases (Rasul, Hamdi and Hamdan) before the court on the writ, SCOTUS addressed and clarified the rules pertaining to status, detainment and later trial. Congress responded with the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 and purported to strip the court of habeas jurisdiction