MCA 2009: (Accidentally) Opening the Collateral Review Floodgates?

Any moment now, the National Defense Authorization Act for Fiscal Year 2010 is going to become law, and with it, Title X, Subtitle D thereof, better known as the Military Commissions Act of 2009. (I'll try to post authoritative text once I see it). [Update: I'm reliably informed that this is the language that passed the Senate Thursday night.]

There is a lot to say about the new Military Commissions Act, and both how it differs from and how it is distressingly comparable to the Military Commissions Act of 2006.  In particular, I am disappointed that the 2009 MCA doesn't make much more than a token effort to harmonize either the personal or subject-matter jurisdiction authorized by Congress in 2006 with that which is recognized under international humanitarian law, even though my own view is that Congress lacks the constitutional authority to subject to military jurisdiction (1) individuals who are not belligerents under IHL; for (2) offenses that are not violations of the laws of war.

To be sure, folks may disagree with me on these points, but I think it's at least an open question whether Congress may confer jurisdiction over military commissions that is at least arguably inconsistent with IHL.

And yet, as I've written about previously, one of the most distressing features of the 2006 MCA is the extent to which it precludes "collateral" challenges to the jurisdiction of military commissions, through the provision that was codified at 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, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, 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.

There is fairly compelling pre-MCA precedent that individuals may use habeas corpus collaterally to attack the jurisdiction of a military tribunal before trial (precedent that arguably calls the constitutionality of this provision into question). Nonetheless, two different district court judges threw out such challenges to post-MCA commissions (in Hamdan and Khadr, respectively), holding that any such claims had to be brought on post-conviction appeal.

Well, here's the punchline: The MCA 2009 rewrites 10 U.S.C. § 950, and leaves what was 10 U.S.C. § 950j(b) out altogether. Not only that, but the MCA 2009 reincorporates what had been 10 U.S.C. § 950j(a) word-for-word as new 10 U.S.C. 950i, suggesting that Congress did not simply forget this provision altogether.

Why does this matter? Because as a result, there is no longer a statutory bar to a Guantanamo detainee mounting a pre-trial challenge to the jurisdiction of a military commission. As a result, any defendant with such a claim may now go directly to the D.C. district court (or, as in bin al Shibh, pursue mandamus relief in the D.C. Circuit), rather than waiting for proceedings in the military commission to run their (slow and unpredictable) course.

I, for one, am glad that the serious jurisdictional questions raised by the MCA might finally receive a full airing, whatever their ultimate answer turns out to be.  That being said, it's hard to believe Congress actually intended this.. Floodgates, consider yourselves opened.