On Wednesday, a federal judge dismissed the case of Guantanamo Bay detainee Salim Ahmed Hamdan. The reason was the Military Commissions Act, which Congress passed last fall to take away the Guantanamo detainees' rights to petition for habeas corpus. The MCA is a classic example of what is called "jurisdiction stripping." When the courts hand down rulings that Congress doesn't like, lawmakers sometimes retaliate by trying to take away their power to hear certain kinds of cases at all or strictly limiting what they can do.
That is also the story behind another case this week, in which the Supreme Court reversed a lower court's decision to grant a new trial in a murder case. At the original trial, members of the victim's family wore large buttons with his picture on them, which the 9th Circuit Court of Appeals ruled violated the rights of the defendant, Mathew Musladin, who claimed he'd killed in self-defense. Musladin brought a habeas corpus petition arguing that the buttons could have prejudiced the jury. At oral argument, most of the Supreme Court justices agreed that seeing the victim's picture every day didn't dispose the jury to be fairer to the defendant. But the federal courts couldn't intervene, the justices ruled unanimously, because of a 1996 statute that allows them to give habeas relief only when the state courts have gotten the law utterly wrong.
Why does Congress get to take cases away from judges or change the rules for hearing them? In his book America's Constitution: A Biography, Akhil Amar, a law professor at Yale, points out that judges weren't the heroes of the Revolution. They were appointed by the British crown. "So even after Independence, judges carried a lot of historical baggage," Amar says. The Constitution's drafters gave Congress weapons to use against the courts without giving judges much to defend themselves with. The president can draw his veto pen if Congress goes after him. The Supreme Court has to find a straight-faced way to declare a law unconstitutional when it weakens the judiciary's powers, Amar writes.
The MCA is such a law. It also may be unconstitutional in some cases. But Hamdan's isn't one of them, according to this week's ruling by Judge James Robertson of the U.S. District Court for the District of Columbia. The problem for Hamdan is that he's a noncitizen whose contact with the United States has been "involuntary"—he's in Guantanamo because the military grabbed him and put him there. The MCA stripped Hamdan of the rights to habeas corpus granted by federal statute. There are also constitutional rights to habeas. But noncitizens like Hamdan don't have the sort of "substantial connection with our country" that justifies invoking the constitutional right to habeas corpus, the Supreme Court ruled in 1990, in United States v. Verdugo-Urquidez.
If Robertson is right that this ruling applies to Hamdan—a question the Supreme Court will eventually settle—hundreds of Guantanamo detainees won't get federal habeas review either. They'll get some other review provided by the MCA. This alternative isn't reassuring to the detainees. Habeas has hundreds of years of law behind it. The MCA review has nothing; no court has yet defined it.
At the same time, the limitations of habeas review, in the wake of Congress's tinkering, are on display in cases like Musladin's. The law Congress passed in 1996 says that the federal courts can't grant a habeas petition that state courts have turned down unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." That is a high bar. This week's ruling in Musladin's case underscores how high: The 9th Circuit was wrong to spend its time thinking about whether it was fair for the victim's family to wear buttons with his picture on them before the jury. Instead, the federal courts can only look to see whether the Supreme Court has already said it's not fair. If they don't turn up a case that's on point, they are to leave the state court's decision untouched.
There are reasons for federal judges to defer to state judges—among them the principle of comity, according to which different branches of government show respect for one another, and the principle of finality, which in this context basically means that you get your habeas crack in the state courts, and that's enough. But habeas review has historically given defendants a chance to air their appeals outside the state system, with its giant caseloads and sometimes rushed rulings. Congress's 1996 habeas law has largely choked off this avenue. Consider Justice Anthony Kennedy's concurrence in Musladin's appeal. "Buttons proclaiming a message relevant to the case ought to be prohibited as a matter of course," Kennedy wrote. And then he called for a new rule that would make it so—in a future case. In other words, too late to matter to Mathew Musladin.
If Musladin's predicament doesn't move you, consider Paul Gregory House. Twenty years ago, a Tennessee jury convicted House of a woman's murder after FBI testing appeared to show his semen on her clothing and her blood on his jeans. All the other evidence against House was circumstantial. He was sentenced to death.
Then, DNA testing showed that the semen on the murder victim's clothes came from her husband and that the blood on House's jeans came not from the woman's live body, but from autopsy samples that spilled in the crime lab. Whoops. And yet, House still had a big problem: His claims of innocence were barred by state procedural rules. Would the federal courts pry open the doors for him?
It was hardly a slam-dunk. Last June, in a dissent by Chief Justice John Roberts, four members of the court said that the courts need not reconsider House's appeal, because he'd failed to prove he was actually innocent. But five justices of the Supreme Court said House should get his second day in court because he had succeeded in showing, based on his new evidence, that it was more likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.
But even with the good fortune of the majority's ruling, House doesn't get out of prison, or spared the death penalty, or even directly granted him a new trial. Thanks to Congress's 1996 habeas law, he has to plunge back into the procedural thicket.
Letting Congress strip the courts of the authority to hear certain claims or cases means giving more power to the people, who can elect their lawmakers but not their federal judges. From a pre-Revolutionary vantage point, that might have made sense. But these days, it's more often judges whom we count on, if we can count on anyone, to stand up for the procedural rights of murder defendants and Guantanamo detainees. Should Congress really be able to block them?
A version of this piece appears in the Washington Post Outlook section.