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In response to the other day's post about the al-Marri decision, reader Robin C. poses an excellent question:

Why, if the Court has so ruled, is a Habeas Corpus Restoration Act needed at all?If the constitutional habeas right still applies, as before 9/11, then doesn’t it weaken its position if a mere statute must be passed to affirm it?

The answer, unfortunately, is complex, so bear with me and I'll try and walk through it. It takes a little familiarity with the basic legal principles to get it fully, so if I flub it, please write back and ask for clarification.Let's start at the beginning, always as good a place as any.According to the Supreme Court, the constitutional scope of the right to habeas corpus, as recognized in the so-called Suspension Clause in Article I of the Constitution (precluding its suspension absent invasion or rebellion), is at least as broad as the common law writ, as it existed in 1789 when the Constitution was ratified.Now, that's a mouthful. To rephrase, the bottom line is that what you can do with a habeas petition---challenge your imprisonment, get another court to review your conviction, etc., etc.---as a matter of constitutional right, is at least as broad as what the courts would have been willing to entertain at the time the Constitution was adopted by the newly United States. BUT, Congress can expand the scope of habeas rights by passing legislation, as can the states, and the Supreme Court has never identified the outer bounds of the constitutional habeas right.Now, in the Supreme Court case that most recently articulated that position, a 2001 immigration decision called INS v. St. Cyr, the court refused to get to the constitutional question of what happens when Congress passes a law that bars civilian courts from hearing habeas petitions that would have been kosher in 1789. Instead, the Court sort of skirted that issue, deciding the case without addressing the constitutional question (which is a typical strategy for federal courts).In essence, it said that if Congress wants to limit the ability of the courts to entertain habeas petitions that would have been acceptable in 1789, it has to do so in clear, unequivocal language. Only then would the Supreme Court be able to get to the constitutional issue. In St. Cyr, the Court said that Congress had failed to make that clear statement, and St. Cyr won.Okay, so what? Well, the Supreme Court, in 2004's Rasul v. Bush, said that the main habeas law---Congress had to detail the scope of the habeas right in legislation---applied to the detainees held at Guantanamo Bay. Here's the court's introductory paragraph on that statute (you really only need to note the bolded sections):

Congress has granted federal district courts, "within their respective jurisdictions," the authority to hear applications for habeas corpus by any person who claims to be held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. '§'§2241(a), (c)(3). The statute traces its ancestry to the first grant of federal court jurisdiction: Section 14 of the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas corpus to prisoners "in custody, under or by colour of the authority of the United States, or committed for trial before some court of the same." Act of Sept. 24, 1789, ch. 20, '§14, 1 Stat. 82. In 1867, Congress extended the protections of the writ to "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. See Felker v. Turpin, 518 U. S. 651, 659-660 (1996).

In response, the Military Commissions Act of 2006 included a section basically saying that no court had any power to hear challenges to their detention under the habeas law by folks "properly designated" (which is not defined) as "enemy combatants."Now, it would absolutely be possible to challenge the constitutionality of that part of the MCA under St. Cyr. That case would have the same two arguments made by St. Cyr. You'd argue first that Congress wasn't clear enough in the language of the law. Second, you'd argue that, if Congress did make its intent crystal clear, that stripping habeas corpus rights from "enemy combatants" would be unconstitutional.Clearly, given the ancient origins of the role of habeas as the most important check on arbitrary executive detentions, folks like me believe that the MCA habeas section is totally unconstitutional. BUT, I'm not a judge, and there're a lot of politicized or executive-friendly judges out there. So, strategically, the best call is to pass a new law changing the MCA habeas provisio.So, bottom line: even though what Congress did was probably unconstitutional, it's a better idea from a political standpoint to fix it in Congress and not the courts, especially with the Democratic win in 2006.Hope that helps. Remember, today is habeas's 792 birthday. I'll be posting something historical. Look for it.