inquiring into whether a committing court had proper jurisdiction is part of

Inquiring into whether a committing court had proper

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, inquiring into “whether a committing court had proper jurisdiction” is part of habeas’ common-law core. 430 U.S. 372, 385 (1977) (Burger, C.J., concurring). Moreover, the writ has long been available—as it was in Hamdan , Quirin , and Yamashita —to resolve the legality of military jurisdiction. In the United Kingdom, it was through habeas corpus petitions that the common-law courts reviewed whether military courts had lawfully exercised personal jurisdiction over a petitioner. See, e.g. , The Case of Wolfe Tone , 27 How. St. Tr. 614 (Irish K.B. 1798); Chancey’s Case , 77 Eng. Rep. 1360 (K.B. 1611). 9 Likewise, both in 9 These early uses of the writ make clear that pre-trial challenges to military commission jurisdiction are not merely features of statutory habeas, but rather form a fundamental part of the writ protected by the Constitution. See INS v. St. Cyr , 533 U.S. 289, 301 (2001) (“[A]t the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” (quoting Felker v. Turpin , 518 U.S. 651, 663-64 (1996))). This was implicitly confirmed by the Supreme 14
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the context of the Civil War, see Ex parte Yerger , 75 U.S. (8 Wall.) 85 (1869), and during the peak of World War II, see Quirin , 317 U.S. 1, as in Hamdan v. Rumsfeld , the U.S. Supreme Court has entertained habeas petitions in order to resolve the legality of military jurisdiction before military commission trials took place. See also, e.g. , Reid v. Covert , 354 U.S. 1 (1957) (reviewing a grant of habeas to a civilian petitioner awaiting re-trial in a military court); Toth , 350 U.S. 11 (reviewing a pre-judgment challenge to the jurisdiction of a court martial to try a former service member for crimes committed in Korea). In addition—and of particular relevance here—habeas corpus has historically been the vehicle through which minors have challenged and obtained release from military jurisdiction. Lawful recruitment into the military has long been an essential prerequisite to military jurisdiction, and habeas has ensured that those too young to lawfully agree to military status do not suffer its consequences. This practice too has long historical roots, dating back to at least 1758, when the Kings Bench heard the habeas petition of a minor who was charged before a court-martial. See Rex v. Parkins , [1758] 2 Kenyon 295, 96 Eng. Rep. 1188. According to the case report, “[t]he question was, whether [the minor] was to be considered as a soldier?” The Kings Bench decided that because the minor’s enlistment had been unlawful, he was not a Court in Toth v. Quarles , 350 U.S. 11 (1955), and other cases decided in the aftermath of World War II, involving habeas challenges to military jurisdiction filed by persons abroad. At that time, the federal habeas statute had been interpreted as authorizing jurisdiction only in the district in which the petitioner was detained. See Ahrens v. Clark , 335 U.S. 188 (1948). Nonetheless, the Court repeatedly reached the merits of habeas petitions filed by U.S. citizens held overseas who challenged the validity of their courts-martial or military commissions. See, e.g. , Toth , 350 U.S.
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  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

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