11 In light of the principle of constitutional avoidance Section 950jb can be

11 in light of the principle of constitutional

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balance between military commissions and civilian courts established by Congress. 11 In light of the principle of constitutional avoidance, Section 950j(b) can be interpreted as simply codifying the prudential rule that civilian courts lack supervisory jurisdiction over military tribunals, see, e.g. , FEC v. Akins , 524 U.S. 11, 32 (1998), while still permitting Article III courts to review the jurisdiction of military commissions and other questions regarding their fundamental legality or constitutionality. See INS v. St. Cyr , 533 U.S. 289, 301 n.13 (2001) (“The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.”). But see Hamdan v. Gates , No. 04-1519, slip op. at 10 (concluding that Section 950j(b) is “plainly a jurisdiction-stripping provision”). 19
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habeas corpus and was therefore invalid). As discussed above, the writ of habeas corpus has for centuries been used to bring pre- trial challenges to the jurisdiction of military commissions over persons, including juveniles, whose status renders them outside the scope of military jurisdiction. See Section I.B.1 supra . Indeed, testing the jurisdiction of an inferior tribunal was one of the original functions of habeas corpus, and it is a critical part of the writ’s constitutional core. See id . Petitioner’s challenge is therefore squarely protected by the Suspension Clause, and any statute purporting to restrict or eliminate his ability to bring that challenge violates the Constitution unless it provides an “adequate and effective substitute for habeas corpus.” Boumediene , 128 S.Ct. at 2240; see Swain v. Pressley , 430 U.S. 372, 381 (1977). Here, the post-conviction review procedures set forth in the MCA are a plainly inadequate substitute for the jurisdictional challenge Petitioner seeks to bring in this motion. Most obviously—and critically—those procedures are an inadequate substitute because they provide only for post -conviction review. The appellate review provided for by the MCA is only triggered once the “convening authority” approves the “final decision” of a military commission, see 10 U.S.C. § 950c(a). Thus, the MCA provides no opportunity to Petitioner to meaningfully challenge the jurisdiction of the military commission prior to a conviction. See Khadr v. United States , 529 F.3d 1112, 1115-17 (D.C. Cir. 2008) (holding that under the MCA, defendants may not take pre-conviction appeals to the D.C. Circuit). 12 On its face, the MCA completely eliminates one of the key remedies offered by habeas corpus: the right to avoid trial in a military commission that lacks personal jurisdiction, and the right to challenge that jurisdiction in a tribunal of record before it takes place. See Councilman , 420 U.S. at 758-59; cf . Boumediene , 12 In contrast, the statute does authorize a range of interlocutory appeals by the government both to the Court of Military Commission Review, 10 U.S.C. § 950d(a), and D.C. Circuit, 10 U.S.C. § 950d(d). 20
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128 S. Ct. at 2271 (“Military courts are not courts of record.”). And this is emphatically not a right that can be vindicated after the fact.
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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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