On Fox News Sunday, Bill Kristol criticized the Supreme Court's decision striking down portions of the Military Commissions Act of 2006 (MCA) and suggested that fears about that law's denial of the writ of habeas corpus were overblown because "American citizens ... and anyone arrested in this country [have] a right to habeas corpus." But contrary to Kristol's suggestion, the MCA explicitly denied habeas rights to noncitizens, regardless of where that person is detained.
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During the June 15 edition of Fox Broadcasting Co.'s Fox News Sunday, Weekly Standard editor and New York Times columnist William Kristol criticized the Supreme Court's decision in Boumediene v. Bush, in which the court struck down portions of the Military Commissions Act of 2006 (MCA), and asserted that, in passing the MCA, Congress had "tried to do the right thing." He then suggested that fears about that law's denial of the writ of habeas corpus were overblown because "American citizens ... and anyone arrested in this country [have] a right to habeas corpus." But contrary to Kristol's suggestion, the MCA explicitly denied habeas rights to noncitizens, regardless of where that person is detained; in Boumediene, the Supreme Court struck down the provisions of the MCA denying habeas to noncitizens, finding that the Constitution guaranteed the right to habeas corpus to those held at Guantanamo Bay.
The now-inoperative Section 7 of the MCA states that "[n]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
As Media Matters for America has explained, under the section the court struck down, when the government arrested any noncitizen based on the unreviewed assertion that he or she is an "unlawful enemy combatant," that person's ability to challenge his or her detention effectively depended entirely on the government's willingness to provide a hearing, which the government could postpone indefinitely. Effectively, the MCA granted the president the authority to detain any noncitizen within the United States or outside its borders, for any reason, for as long as the campaign against terrorism continues.
From the June 15 edition of Fox Broadcasting Co.'s Fox News Sunday:
KRISTOL: But in fact, habeas is -- almost all the time, a habeas challenge is after a trial when there's new evidence or there's something wrong with a man's detention, and you go to federal court and say, "Wait a second, we now know something we didn't know when this guy's being detained incorrectly prior to trial." That's based on established case law and statutes.
This is totally uncharted waters. It's utterly unmanageable. And I think what it means is Congress has to step in now and specify, "OK, if the court's going to make us do this, we need to set up a system of a national security court that can handle these trials." This has been proposed by Andrew McCarthy, the former federal prosecutor who tried the blind Sheikh in New York and has a very good book out on the problems of trying to do this through the federal legal system. Anyway, you could do it. You could have a national security court. Senator Lindsey Graham [R-SC] is working on this.
And I think you will see Senator Graham, accompanied by Senator [John] McCain, come to the floor of the Senate very soon, like next week, and say, "We cannot let chaos obtain here. We can't let 200 different federal district judges on their own whim call this CIA agent here, say, 'I don't believe this soldier here who said this guy was doing this. You have to release someone,' or, 'Let's build up -- let's compromise sources and methods with a bunch of trials.' " I mean, it's ridiculous.
So Congress has to act. Senator Graham and Senator McCain are going to insist on action. It will be interesting to see what Senator Obama's response is if the serious legislative proposal is introduced to set up a way of doing this consistent with the Supreme Court decision.
WILLIAMS: Well, I'm glad to hear you say that, because I think what you're saying is you're agreeing basically with the 5-4 decision, because you're saying there needs to be a structure, that you can't simply hold people for an undetermined length.
KRISTOL: Let me just clarify my position since you just --
KRISTOL: I think -- I just want to make clear: I think it was a very bad decision. A large part of me wishes that President Bush would stand up and say, as President Andrew Jackson said almost 200 years ago, you know, "[Supreme Court] Justice [Anthony] Kennedy has made his decision. Let him enforce it."
On the other hand, that's not going to happen --
KRISTOL: -- and there's a real practical problem now with potential chaos and the release of either information that shouldn't be released or of terrorists who shouldn't be released, and that's why I think Congress has to act.
Congress has to now do the right thing, and -- but I very much agree with [Fox News Washington managing editor] Brit [Hume]. Congress tried to do the right thing before. There were -- there was a bait and switch by the Supreme Court. They've decided Congress didn't do the right thing. But Congress has to act aggressively now to prevent chaos in the federal courts.
WILLIAMS: Right, but what I was saying to you, Bill, was you have to understand habeas corpus was put in place literally to restrain what could be the unlimited power of the executive here.
You don't want the president deciding, "Gee, I don't like what Bill Kristol said the other day. Put his -- put him in jail." No.
KRISTOL: American citizens --
WILLIAMS: Come on. You don't --
KRISTOL: American citizens --
KRISTOL -- have a right to habeas corpus and anyone arrested in this country has a right to habeas corpus.
WILLIAMS: Right, and you -- but --
KRISTOL: These are people arrested in Bosnia, as you said. And how is the federal judge going to decide whether the intelligence was correct?
WILLIAMS: Well, that's what you said. Let's set up a structure, a process. And in fact, I think [Supreme Court] Justice [John] Roberts was right to say, "You know what? If you folks disagree with the current situation, you should, you know, outline exactly how you think it should be done." Instead, they have sent it back to the district courts.