Suspension of the Writ?
Given that the MCA eliminates habeas for people like Hamdan, the question becomes whether that elimination is constitutional. One way in which it might be valid is pursuant to the power of Congress to suspend habeas corpus in response to “rebellion or invasion.” But, Judge Robertson said, no rebellion or invasion existed when Congress enacted the MCA. That is an interesting conclusion for at least three reasons. First, Judge Robertson did not need to address the suspension question at all–but nevertheless chose to do so. As noted above and explained more fully below, Judge Robertson concluded that Hamdan had no right to habeas, even if the writ were not validly suspended. His entire discussion of the power of Congress to suspend the writ was thus not necessary to the case. It was arguably what lawyers call “dicta.” Second, in finding that no rebellion or invasion existed, Judge Robertson implicitly rejected an argument the Administration has sometimes advanced–namely, that it is sole
