We the people

Alright, so I've been studying the new bill, along with the Consitution (i.e. what Bush calls "just a piece of paper"), particularly Article III. From what I can tell it appears that the alarmism everyone is spouting is just that: alarmism. While I find this bill morally wrong and quite frankly disgusting, there really is nothing illegal about it. So here's what I've found.

First, The Supreme Court does have judicial review power (the power to review the legality of a law used to prosecute someone. Established by Marbury v. Madison), but they will only hear a case if it's a matter of law, not matters of fact. The issue has to be that the law that was used to prosecute someone is flawed or possibly unconstitutional. You cannot take your case to the Supreme Court if it's matters of fact, i.e. "That's not my DNA on the victim!"

Also the Supreme Court can only exercise judicial review if the law is challenged by a case. It can come to the Supreme Court in three ways:

1. The Supreme Court decides to exercise original jurisdiction. This can only happen for cases involving ambassadors, or if a state is a party, i.e. Bob v. the state of Arizona. This is very rare and is usually only exercised in state v. state matters.
2. A case is appealed to the Supreme Court from a lower federal court. Not situations allow for the right of appeal. Double jeopardy is one such situation. If someone is accused of murder and is acquitted, the State cannot appeal the ruling and try them again in a higher court.
3. The Supreme Court issues a writ of certiorari. This is is an order by the appellate court to review the lower court's decision for legal error when no right of appeal exists. Four of the nine Supreme Court Justices must agree to issue the writ (known as the "rule of four")

Now, according to section 950g of this new bill, the United States Court of Appeals for the District of Columbia Circuit has sole jurisdiction as the appeals court for this new military court. But in order to send a case to DC court, the convicted party must waive their right to have their case reviewed by appealing to the military court of review. Take a look:

Sec. 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court

`(a) Exclusive Appellate Jurisdiction- (1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.

`(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.

`(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which--

`(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or

`(B) the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.

`(b) Standard for Review- In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.

`(c) Scope of Review- The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of--

`(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and

`(2) to the extent applicable, the Constitution and the laws of the United States.

`(d) Supreme Court- The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.

Once in the DC court, the case will then be reviewed and if the issue of constitutionality is valid, then the case can be appealed to the Supreme Court where a ruling can be made. Note that at any time either the DC court or the Supreme Court can reject the case. The Supreme Court can also review the case by exercising their power to submit a writ of certiorai. Again, only if this is a matter of law.

Now 950j states that

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.

That first phrase "Except as otherwise provided in this chapter " is critical. What this is saying is that other than the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court, no OTHER courts may challenge the decisions of this military court. This is perfectly legal as the federal courts are given power by congress, and congress can limit their scope and jurisdiction. They are simply limiting the appeals to a single court. In other-words, you can't appeal to the court of appeals in California or Washington.

Congress has no power to limit the Supreme Court's jurisdiction, short of passing an amendment to the Constitution (which would never happen). No matter how much Bush flails and whines and complains and makes new courts, the Supreme Court has the power to overturn any lower court, including military courts. This is part of the checks and balances. The check against the Supreme Court is that they can only make rulings if a case is challenged and brought before them.

You can disagree with a law passed by Congress while still agreeing it's perfectly legal. I despise this bill and I'm not sure it's entirely legal, but we will see. Making certain kinds of torture legal and suspending habeus corpus for detainees is wrong. If the US wants to be a world leader, we have to hold ourselves to higher standards than everyone else. Part of that is how we treat our prisoners. By giving even "enemy combatants" the same legal rights as citizens, giving them a fair trial, and treating them as human beings, we can prove to the world that we are truly better than those that hide behind religion as an excuse for killing.

By ordaining torture, suspending the rights of those we capture and continuing a pointless and morally reprehensible war, we are saying that we care more about ourselves then about the rest of the world. And selfish leaders always do more harm than good.