Kossacks, I need your help. This diary can be usefull for the entire Kos community (not only helping me get my arguments straight, but for educating everyone and giving us specific talking points to use against supporters of suspension of Habeas)
I am writing a paper for an undergraduate constitutional law class, and have to write an opinion and dissent of the court regarding the question "Is the suspension of Habeas Corpus for non-US citizens in the Military Commissions Act(MCA) of 2006 unconstitutional?".
Obviously, in my SCOTUS, they rule it is unconstitutional, mainly because the U.S. Constitution article 1 section states
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
clearly this is not the case currently in the United States. Moreover, there was never a "suspension" of habeas, just taking it away from "aliens". Is there a precedent for having different criminal codes for foreigners?
as as Justice O'Connor stated in Hamdi V. Rumsfeld
Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake".
The Dissent case will be based on Johnson v. Eisentrager (1950) in which the court decided not to hear Habeas cases for Germans held in US run prisons in Germany. The key difference is, the MCA applies to legal aliens taken on US soil.
So, again, I ask you oh educated Kossacks (especially those of you with JD's), why is the Military Commissions Act unconstitutional?