At the outset, it’s worth emphasizing that my concerns with S. 3707 with regard to the provisions relating to judicial review of military commissions pale in comparison to my concerns with the heart of the bill (the substantive detention authorization), about which I hope to have more later today. Indeed, part of why I flagged new Section 2256(f) was to note how unrelated it is to the “problems” that the Graham bill purportedly solves. That being said, I can’t leave my friend Peter Margulies’ critique unanswered. Whatever may generally be true of the equitable principles that govern habeas, there is well-established precedent, of which the Supreme Court’s 2006 decision in Hamdan is only the most recent, that does not require civilian courts to stay their hand where defendants raise serious challenges to the jurisdiction of military courts—be they military commissions or courts-martial. Peter responds, in part, that it makes a difference that Congress has specifically authorized the military’s exercise of jurisdiction here. That’s certainly the logic that the D.C. district court relied upon in Hamdan and Khadr, both of which abstained from resolving jurisdictional challenges in favor of post-conviction appeals. But, as I’ve argued previously, this argument is a non-sequitur. Congress has specifically authorized the jurisdiction exercised by courts-martial at least since the codification of the Uniform Code of Military Justice (UCMJ) in 1950, and yet pre-trial collateral challenges to the exercise of military jurisdiction have continued unabated in the 60 years since then. As Justice Stevens wrote in Hamdan, these cases stand for the proposition that “abstention is not appropriate in cases in which individuals raise substantial arguments denying the right of the military to try them at all, and in which the legal challenge turn[s] on the status of the persons as to whom the military asserted its power.” (alteration in original; quotation marks omitted). Peter (and others) may disagree with me that the arguments here are “substantial,” but if they are, the precedent for allowing pre-trial challenges thereto is clear. Thus, while the Graham bill could be framed as “codifying existing practice” in this regard, what it’s really codifying are two district court decisions that are deeply inconsistent with precedent, and that have not been considered by any appellate court.
He also offers more extensive comments here.