Disbelief of Suspension

The Supreme Court's decision in Hamdan v. Rumsfeld could hinge on whether the Detainee Treatment Act suspends the right of habeas corpus, which the Constitution authorizes Congress to do "in Cases of Rebellion or Invasion," or simply bars petitions from prisoners at Guantanamo without suspending the writ. The Bush administration presumably would argue that the continued threat of 9/11-style attacks constitutes an invasion. But as Justice David Souter pointed out during yesterday's oral arguments, it's hard to believe Congress would, or constitutionally could, take such a momentous step without saying so explicitly:

[Solicitor General Paul] Clement's position was that Congress had not in fact suspended habeas corpus, but that it might constitutionally have done so given "the exigencies of 9/11." Addressing Justice Stevens, the solicitor general said, "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."

Justice Souter interrupted. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied, "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States–"

"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

Then again, if Congress can authorize warrantless surveillance of Americans without realizing it, I suppose it can accidentally suspend habeas corpus.