An Appeal Is Not a Way Out

On September 28, 2006, the Senate passed S. 3930, the Military Commissions Act of 2006, by 65 votes to 34. This was Senate passage, not enactment. The provisions examined here are those in the Senate-passed text, not a claim that the vote itself immediately changed the law.

The pattern is precise: institutional order can expand while access to correction contracts. A system acquires more procedures. The person inside it does not necessarily acquire more leverage.

Two Different Questions

Section 3 would authorize presidentially established military commissions to try alien unlawful enemy combatants for specified offenses. It also supplies a review structure. Proposed section 950g gives the District of Columbia Circuit jurisdiction to determine the validity of final commission judgments once other appeals under the chapter have been waived or exhausted. Its review concerns matters of law; the Supreme Court could then review the appellate court’s final judgment by certiorari.

Calling this a court system “without appeal” would therefore be wrong. The appeal is explicitly there. So are trial protections: the text requires an instruction that the accused is presumed innocent and places the burden of proving guilt beyond a reasonable doubt on the United States.

Those provisions matter. A critique that erases them would reproduce the very defect it should expose: deciding the answer before allowing the evidence into the room.

But an appeal from a final criminal judgment and a habeas petition ask different questions. One contests the judgment reached through prosecution. The other can challenge the legal basis for custody. A person need not have a commission conviction to have a reason to contest detention.

That is where section 7 enters.

The Gate Before the Trial

Section 7 would remove courts’ jurisdiction to hear habeas applications filed by or for a noncitizen detained by the United States who has been determined by the United States to be properly detained as an enemy combatant—or is awaiting that determination.

The last category is especially consequential. The proposed restriction does not depend solely on a completed classification. It reaches someone still waiting for the government to decide.

The section also restricts other litigation concerning detention, transfer, treatment, trial and confinement, while expressly preserving the review routes specified in the cited provisions of the Detainee Treatment Act. It should not be described as abolishing every possible form of judicial review. Its effective-date clause seeks to reach pending cases as well as cases brought after enactment.

These are jurisdictional choices: rules about which questions a court is permitted to hear. They do not establish that every person covered is guilty, that every detention is justified, or that the restrictions themselves would survive constitutional challenge. The text describes what Congress is attempting to do, not the final judicial answer.

The structural asymmetry nevertheless sits in plain sight. Government detention and classification would help determine whose access to habeas is closed. Meanwhile, the commission appeal route depends on a final judgment. For someone without such a judgment, pointing to that appeal answers a different person’s problem.

Order Must Be Answerable

A legitimate security system needs ways to prosecute offenses. It also needs ways to discover that it has detained the wrong person or exceeded its authority. Those functions are not competitors. Correction is part of lawful power, not an administrative inconvenience attached to it.

The coherence test is therefore not how neatly the proceedings fit together. It is whether the people subject to them can meaningfully challenge the state’s account. Order purchased by narrowing that challenge may look efficient from the institution’s side of the barrier.

The Senate has approved both a route for reviewing convictions and language intended to close habeas review for a defined group of detainees. The next test will not be whether the architecture has an appeals process. It will be whether the person who needs an answer can reach a court allowed to give one.