Anthony Lewis: Why the Senate Shouldn't Try to Stop the Supreme Court from Ruling on the Guantanamo Cases
AFTER the Northern victory in the Civil War, laws passed by Congress during the era of Reconstruction imposed military governments on the former Confederate states. A Mississippi editor, William H. McCardle, was arrested by the military and charged with publishing incendiary and libelous articles. He was held for trial before a military commission. But he went to a federal court and sought his release on a writ of habeas corpus, arguing that military rule of civilians was unconstitutional.
When McCardle lost in the trial court, he appealed to the Supreme Court, as the statute allowed. The Supreme Court agreed to decide the case and heard argument on it. Critics of the Reconstruction system thought, on the basis of recent decisions, that the court was about to return the South to civilian government.
But before the Supreme Court could hand down its decision, the Radical Republicans who controlled Congress repealed the law that allowed McCardle to bring forward his habeas corpus appeal. The justices then held that they had no power to decide the case. They dismissed the appeal. Military rule of the Southern states continued.
Ex Parte McCardle, as the case is called, was decided in 1869. Ever since, most legal scholars have regarded it as a terrible blot on the constitutional history of this country: a decision that Congress could thwart a test of an imprisonment's lawfulness even after the Supreme Court had taken the case.
The ghost of the McCardle case was brought to life last week when the Senate, by a vote of 49 to 42, approved an amendment to cut off habeas corpus petitions by detainees at the Guantánamo Bay, Cuba, prison camp. The amendment, sponsored by Senator Lindsey Graham, Republican of South Carolina, would nullify a June 2004 Supreme Court decision that, because the Guantánamo base was under American control, the prisoners there could challenge their detentions in federal courts.
The Graham amendment echoes the McCardle case closely. It threatens to cut off the Supreme Court's jurisdiction in a case that the court had just agreed to review. The issue in that case is the lawfulness of trials by military commission for certain Guantánamo prisoners whom the Bush administration has decided to prosecute....
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When McCardle lost in the trial court, he appealed to the Supreme Court, as the statute allowed. The Supreme Court agreed to decide the case and heard argument on it. Critics of the Reconstruction system thought, on the basis of recent decisions, that the court was about to return the South to civilian government.
But before the Supreme Court could hand down its decision, the Radical Republicans who controlled Congress repealed the law that allowed McCardle to bring forward his habeas corpus appeal. The justices then held that they had no power to decide the case. They dismissed the appeal. Military rule of the Southern states continued.
Ex Parte McCardle, as the case is called, was decided in 1869. Ever since, most legal scholars have regarded it as a terrible blot on the constitutional history of this country: a decision that Congress could thwart a test of an imprisonment's lawfulness even after the Supreme Court had taken the case.
The ghost of the McCardle case was brought to life last week when the Senate, by a vote of 49 to 42, approved an amendment to cut off habeas corpus petitions by detainees at the Guantánamo Bay, Cuba, prison camp. The amendment, sponsored by Senator Lindsey Graham, Republican of South Carolina, would nullify a June 2004 Supreme Court decision that, because the Guantánamo base was under American control, the prisoners there could challenge their detentions in federal courts.
The Graham amendment echoes the McCardle case closely. It threatens to cut off the Supreme Court's jurisdiction in a case that the court had just agreed to review. The issue in that case is the lawfulness of trials by military commission for certain Guantánamo prisoners whom the Bush administration has decided to prosecute....