The Moment of Truth for Military Commissions, and the Jurisdictional Bar that Might Get in the Way...

How Appealing and SCOTUSblog have both already noted the petition for a writ of mandamus filed yesterday in the D.C. Circuit by military lawyers for Ramzi Bin Al-Shibh, seeking to have some of the central provisions of the Military Commissions Act of 2006 invalidated -- and seeking, in effect, to bring the military commission process to a screeching halt.  As the petition argues,

Not only is the MCA unconstitutional on its face, but the proceedings themselves have been “irregular” in every sense. In fact they have been a travesty of justice, a “system” -- in the military judge’s own words -- “in which uncertainty is the norm and where the rules appear random and indiscriminate.”

I happen to think there is substantial merit to many of the substantive arguments advanced in the petition, for reasons I hope to write more about next week.  In the interim, though, I wanted to flag what I suspect the government's response will harp upon -- the argument that the D.C. Circuit lacks jurisdiction to even consider the petition's claims.

Although the Military Commissions Act confers jurisdiction upon the D.C. Circuit to review final judgments of military commissions, it constrains both the scope and timing of that jurisdiction (see 10 U.S.C. 950g). Mandamus might lie in any event under the All Writs Act (if the underlying claims have merit), since there is a solid argument that it would be appropriate to protect the appellate jurisdiction that the MCA already gives the D.C. Circuit after the fact. 

The problem is a separate provision of the MCA -- 10 U.S.C. 950j(b):

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever . . . relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

Bin Al-Shibh's petition offers several arguments for why 950j(b) may not apply to his case.  If it does, though, it may well be unconstitutional. I have argued elsewhere that part of what the Suspension Clause protects is a right to collaterally attack one's amenability to military jurisdiction--and to do so before trial, to vindicate one's right not to be tried. If that's true (the Supreme Court has often hinted at this, but never explicitly so held), then 950j(b) would be unconstitutional to the extent that it precludes pre-trial challenges that go to the commission's jurisdiction.

So, this may be the moment of truth for military commissions--or, at the very least, for whether those who are protected by the Suspension Clause have a concomitant right to contest the jurisdiction of a military tribunal before being subjected thereto...