Yoo v. Lederman on the MCA (with Althouse referreeing)

Prof. John Yoo weighs in on the Military Commission Act in this WSJ op-ed, arguing that "[t]he new law is, above all, a stinging rebuke to the Supreme Court."  Marty Lederman responds:

The reason John and his colleagues are so spooked by the prospect of judicial review is that they want the President to be able to act in accord with very radical and questionable legal interpretations, without any risk that anyone will ever call them on it. If this Administration had not chosen to take such a cavalier and dismissive attitude toward the substantive legal norms (of statute, treaty and laws of armed conflict) that govern the conduct of war, it would have nothing to fear from judicial review. The only reason they are desperate to shut the courts out is that their conduct is of such dubious legality.

Prof. Ann Althouse, meanwhile, says that Prof. Yoo "overdoes it," because the MCA merely does what the Court invited the President to do, which is to seek authority from Congress.

I basically agree with Prof. Althouse's view of the MCA vis-a-vis the Court, but I do think it is significant to note that the MCA does in fact suggest that the Hamdan Court was wrong in its interpretation of the Detainee Treatment Act (especially) and the Uniform Code of Military Justice.  That's not to say that Justice Stevens' opinion was clearly wrong in its application of statutory interpretation techniques to the DTA, but that the result urged by Justice Scalia -- and now confirmed by the MCA -- seemed to be more consistent with what one might have expected from the Republican controlled Congress responding to the decision in Rasul v. Bush, which after all started the whole debate by opening the federal courts to habeas petitions from alien detainees.

(None of what I've written goes, I should add, to the core of the criticisms leveled at the MCA -- namely, its apparent suspension of the habeas writ for large classes of cases that might have been brought by detainees.  I say "apparent" because, of course, that presupposes that the aliens outside the country have some entitlement to habeas rights beyond what Congress chooses to provide by statute, an interesting question not immediately answerable by reference to the two cases that Lederman cites (Quirin and Yamashita).  Quirin -- the German saboteurs case -- involved aliens captured inside the U.S., so it does not go to the extraterritorial question.  Yamashita involved a Japanese general convicted and executed in a military commission following World War II for failing to control his troops in the Phillippines; however, the Phillippines were a quasi-U.S. territory at the time.  For more detailed discussion and argument as to why aliens outside the country might have a constitutional basis for habeas rights, see my co-blogger Stephen Vladeck's paper, "Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III").