Figuring Out the Habeas Corpus Restoration Act

I’m not a lawyer, nor do I play one on teh innertubes. But recently, H.R. 2826 was introduced (you can search for it at Dubbed the Habeas Corpus Restoration Act, it’s been all over the leftosphere, so I figured I should try to figure out what it’s all about.

Summary: the preamble pretty much says it all:


To amend titles 28 and 10, United States Code, to restore habeas corpus for individuals detained by the United States at Naval Station, Guantanamo Bay, Cuba, and for other purposes.

Note that habeas corpus is pretty much all that the bill restores (AFAICT).

(Update, Sep. 19: I guess this is mostly moot, since the bill has been defeated.)


If bills were code, there’d be a “declarations” section at the top, in which common terms and chunks of data used multiple times are defined, so that they could later be referred to by a short identifier. In that spirit, let’s call the following bit of text The Gist:

(e)(1)(A) No court, justice, or judge shall have jurisdiction to hear or consider any action, other than an action described in subparagraph (B), against the United States or its agents relating to any aspect of the detention, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(B) An action described in this subparagraph is–

    (i) an application for a writ of habeas corpus, including an application challenging transfer; or

    (ii) any action solely for prospective injunctive relief against transfer.

(2) Notwithstanding paragraph (1), no court, justice, or judge shall have jurisdiction to consider an action described in subparagraph (B) brought by an alien who is in the custody or under the effective control of the United States, in a zone of active combat involving the United States Armed Forces, and where the United States is implementing Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees, United States Army Regulation 190-8 (1997), or any successor regulation, as determined by the President.

(3) Nothing in this subsection shall be construed as creating a new cause of action.

As I understand it, section (1)(B) of The Gist says that if you’re a prisoner at Gitmo, you can ask for a writ of habeas corpus, and you can ask not to be transfered (presumably this means extraordinary rendition to Uzbekistan).

Section (1)(A), on the other hand, says that that’s all you can ask for. So this bill doesn’t appear to grant detainees Geneva Convention protection, or anything like that. Just the right to be told why they’re being held, and to ask not to be sent somewhere worse.

Section (2), as I read it, says that you’re not allowed to ask for a writ of habeas corpus while the bullets are actually flying. I’m not sure whether this is silly or normal. Perhaps someone can explain it to me.

Subsection (a)

Getting back to the Habeas Corpus Restoration Act itself, subsection (a) replaces a section of existing law (US Code, title 28, sec. 2241, subsection (e)) with The Gist.

Subsection (b)

This subsection amends two other existing laws: Public Law 109-148 (scroll down to section 1005(e)) and 109-163 (scroll down to section 1405(e)). Both are part of the Detainee Treatment Act of 2005. Both of the sections under consideration are identical. The Habeas Restoration Act voids the following text:

(e) Except as provided in section 1005 of the Detainee Treatment
Act of 2005, no court, justice, or judge shall have jurisdiction to hear
or consider–
(1) an application for a writ of habeas corpus filed by or
on behalf of an alien detained by the Department of Defense at
Guantanamo Bay, Cuba; or
(2) any other action against the United States or its
agents relating to any aspect of the detention by the Department
of Defense of an alien at Guantanamo Bay, Cuba, who–
(A) is currently in military custody; or
(B) has been determined by the United States Court
of Appeals for the District of Columbia Circuit in
accordance with the procedures set forth in section
1005(e) of the Detainee Treatment Act of 2005 to have
been properly detained as an enemy combatant.

It also adds The Gist to the list of laws that apply to detainees.

Subsection (c)

Subsection (c) amends yet another law (US Code, title 10, section 950j, subsection (b)) to say that The Gist applies to military commissions as well, though otherwise detainees still have no rights and no recourse to the courts.

Subsection (d)

Subsection (d) assigns The Gist to yet another law (Public Law 109-366 (scroll down to “SEC. 7. HABEAS CORPUS MATTERS”)), which amended yet another law which denied habeas corpus to detainees.


On the whole, this bill seems like a Good Thing, in that it does what it sets out to do, namely restore the right of habeas corpus to Gitmo detainees, allowing them to find out WTF they’re being detained in the first place. This seems like the first step toward this country, if not reclaiming the moral high ground, then at least getting back to where the moral high ground is visible over the horizon.

It doesn’t seem to address issues of prisoner treatment, like whether the Geneva Conventions apply to them, the right to a fair trial, or anything like that, so there’s still work to do. But it’s a step.

Anyone who thought that laws usually say “you have to do X” or “you can’t do Y” is sadly mistaken. Almost all of the bills I’ve read in the past few years have been collections of amendments to existing laws. And in this case, some sections amend sections that amended still other laws. I keep thinking of patches to patches to patches, and it drives me nuts. It’s probably a good thing that I’m not a congressman, because if I were, I’d spend all my time coming up with a diff notation for bills, and rearranging the US code for modularity and readability, and never getting anything actually done for my constituents.

Having said this, it seems that the language for amending earlier laws is fairly standardized, and a reasonably simple parser should be able to suss out the references and the changes being made. But in any case, there’s an army of people on Capitol Hill looking at this stuff. Someone should be able to annotate the legalese in a machine-readable way. Which brings me to:

It seems criminal that in this day and age, there aren’t any good tools for the public to look up laws. As I’ve said above, this bill and many others are patches to patches, yet there don’t seem to be any good tools to see the effect of a proposed bill. In short, why doesn’t US law have “preview” and “history” functions like on Wikipedia?

Finally, it looks as though I may need to change what I wrote a while back:

So it seems that if ye come across a bill entitled “Lofty, ultra-patriotic abstract concept Restoration Act”, it’s actually code fer “theocracy.”

since this bill doesn’t seem to fit that description.

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