Article I. section 9 provides that the "Writ of Habeas Corpus shall not be suspended. unless when in Cases of rebellion or invasion the public Safety may require it." The Judiciary Act of 1789 specifically empowered federal courts to issue writs of habeas corpus "for the purpose of an inquiry into the cause of commitment." In more than 2 centuries since then. habeas has only been suspended 4 times. all of them at times of active rebellion or invasion. Even this administration does not claim that we are at such a point now. The Military Commissions Act of 2006 spurned centuries of tradition and empowered the executive to detain noncitizens potentially forever. with no meaningful check by another branch of Government. With this act. Congress permanently eliminated the writ of habeas corpus for any noncitizen determined to be an enemy combatant or even awaiting such determination. If the determination hasnt been made. we are going to spend a few years making up our minds whether you are an enemy combatant. but you still cant contest the fact that we have picked up the wrong person. So a mere accusation by the executive is enough to keep a person in custody indefinitely. and that detention is not subject to review.
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