The Graham Amendment, or, Has Time Proven Justice Scalia Right?

An increasingly well-noted topic in law-blawging this week is the so-called "Graham Amendment" [Hat Tip to How Appealing for the link], which purports to strip all federal courts of jurisdiction to entertain habeas petitions brought by Guantanamo detainees. Forests could likely be felled on whether the Amendment, if enacted, would violate the Constitution's Suspension Clause, which forbids suspension of the "privilege of the writ of habeas corpus" except "when in cases of rebellion or invasion when the public safety may require it." Some of the constitutional questions include (1) whether the statute would truly "suspend habeas" by stripping federal jurisdiction; (2) if so, whether this is a "case[] of rebellion or invasion"; (3) if so, whether the "public safety" requires suspension; and so on. Even if the Amendment wouldn't technically be a "suspension" of habeas, it raises separate legal issues to the extent that it might deprive the detainees of a forum in which to enforce what (few) constitutional rights they may have.

Another point, that I have yet to see any posts on, is whether passage of the Amendment would divest the Supreme Court of jurisdiction over the recently granted Hamdan case, since the Amendment would apply "to any application or other action pending on or after the date of the enactment of this Act." [As federal courts scholars can attest, the Supreme Court famously affirmed the constitutionality of a statute depriving it of jurisdiction over an appeal enacted while that appeal was pending in Ex parte McCardle.] Thus, the Graham Amendment might provoke a modern reconsideration of McCardle...

But what's been bothering me today is something far more banal. The Amendment is, rather clearly, meant to override the Supreme Court's 2004 interpretation of the habeas statute, 28 U.S.C. [sec.] 2241, as extending to Guantanamo in Rasul v. Bush. Rasul held that the habeas statute did allow jurisdiction over habeas petitions filed by Guantanamo detainees, drawing a passionate, angry dissent from Justice Scalia. Decrying the majority's opinion as "a monstrous scheme" and "judicial adventurism of the worst sort," Justice Scalia was chiefly concerned with the fact that:

From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.

Here's my question: Has the "legion of ensuing claims" that Justice Scalia so dreadfully feared actually materialized?

To my mind, there are now only two major pending cases related to the Guantanamo detentions -- Hamdan, which the Court granted on Monday, and the "Guantanamo Detainee Cases," a series of appeals consolidated by the D.C. Circuit, and awaiting decision after oral argument. I may be missing one or two stray cases, but that's basically been it.

So, if a central rationale of Justice Scalia's dissent (and of Senator Graham's desire to overrule Rasul) was the possibility that the decision would open the floodgates to a slew of new cases filed in the federal courts, thus straining the resources of the judiciary, that concern just hasn't materialized in the 17 months since Rasul. Nor have the two principal cases following Rasul drawn into question "battlefield" decisions in the war on terror. Hamdan, at most, goes to (1) whether Congress has authorized the military tribunals at Guantanamo, or, if it hasn't, whether the President has inherent power to create them himself; and (2) what treaty-based, constitutional, and statutory rights Hamdan has before the tribunal.  The Detainee Cases go only toward the extent to which the detainees must be held in accordance with provisions of domestic and international law.

Until and unless those concerns do materialize, and I'd be the first to admit that they are not lightly to be ignored, any move to deprive the federal courts of jurisdiction to hear these claims strikes me as premature, to say the least. I imagine, however, that I'm hardly part of an overwhelming majority in so thinking...