his particular unlawful enemy combatancy determination but rather has contended

His particular unlawful enemy combatancy

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his particular unlawful enemy combatancy determination, but rather has contended that military cannot exercise jurisdiction over him because of his status as a juvenile—a class of persons over whom the MCA simply does not confer jurisdiction. See Councilman , 420 U.S. at 759. His claims thus fall into the “long-standing exception to Councilman abstention” recognized by the Hamdan court, Hamdan v. Gates , No. 04-1519, slip op. at 15, and by Councilman itself. 10 10 Abstention is also inappropriate because the bases for abstention identified in Councilman are absent here. In Councilman , the Court concluded that abstention was appropriate based on two premises: military discipline is “best served if the military justice system acts without regular interference from civilian courts;” and federal courts should respect the balance between military preparedness and fairness to individual service members reflected in the system of military courts and review procedures, which include a right to appeal to the civilian-staffed Court of Military Appeals. Hamdan , 548 U.S. at 586-87. Here, however, 18
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3. Section 950j(b) of the MCA Does Not Divest this Court of Jurisdiction Over Petitioner’s Jurisdiction-Related Claim Section 950j(b) of the MCA provides: 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. MCA § 3(a)(1), 120 Stat. at 2623 (codified at 10 U.S.C. § 950j(b)) (internal citations omitted). The Government has previously argued that Section 950j(b) of the MCA strips federal courts of jurisdiction to consider pre-trial habeas challenges to military commission jurisdiction. See Hamdan v. Gates , No. 04-1519, slip op. at 9. But it does not. Initially, Section 950j(b) need not be read to strip this Court’s jurisdiction over Petitioner’s challenge to military commission jurisdiction over juveniles. 11 But insofar as Section 950j purports to strip this Court of habeas jurisdiction over Petitioner’s challenge to military commission jurisdiction based on his juvenile status, it is an unconstitutional suspension of the writ and therefore invalid. Cf . Boumediene , 128 S. Ct. at 2262-74 (concluding that Section 7 of the MCA unconstitutionally suspended the writ of Petitioner “is not a member of [the] Nation’s Armed Forces, so concerns about military discipline do not apply.” Id . at 587. Further, because Petitioner has challenged military commission jurisdiction over juveniles altogether, rather than simply challenging the military commission’s decision on the facts of a particular case, adjudicating Petitioner’s claim would not upset the balance between military commissions and civilian courts established by Congress.
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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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