U.S. Senators Lindsey Graham (R- SC) and Jon Kyl (R-AZ) today issued the following statement on the U.S. Supreme Court?s ruling on the Hamdan case:
?We are disappointed with the Supreme Court?s decision. However, we believe the problems cited by the Court can and should be fixed.
"It is inappropriate to try terrorists in civilian courts. It threatens our national security and places the safety of jurors in danger. For those reasons and others, we believe terrorists should be tried before military commissions.
"In his opinion, Justice Breyer set forth the path to a solution of this problem. He wrote, ?Nothing prevents the president from returning to Congress to seek the authority he believes necessary.?
"We intend to pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions. Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute."
Kyl and Graham presumably have in mind a statute creating military tribunals to try the Gitmo prisoners. But there is a more interesting option open to Congress, which I doubt they have the guts to try; namely, a statute under US Constitution Article III section 2 stripping the courts of their authority to hear cases filed by the Gitmo prisoners. Article III section 2 provides that:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
There's case law suggesting that Congress can exercise this power to strip courts of jurisdiction to hear classes of cases other than those few specified in the Constitution as falling within the original jurisdiction of the Supreme Court. And, looking to the Founders for guidance, Alexander Hamilton wrote in Federalist No. 81 that:
To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction [that] shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.
To be sure, there's debate over the scope of Congressional power under Article III section 2, as my UCLA law colleagues Gary Rowe and Eugene Volokh have noted. And, to be clear, I'm not suggesting Congress should pursue this course of action. I'm simply noting that it could do so and wondering whether anybody in Congress will have the chutzpah to run it up the legislative flagpole.
