I don’t ever recall so many prominent bloggers all at once questioning Professor Volokh’s sense and integrity after Volokh worried that, under Rasul, a hypothetical 50,000 habeas petitions at once could burden our future war efforts. Kieran Healy now seems to think that Volokh’s justification for eschewing torture issues was a crock. DeLong thinks—well, he just channels mockery. Atrios thinks the good professor has judicial appointment in mind.
Juan Non-Volokh, however, takes the hypothetical seriously (as it should be taken). In disputing Volokh, he quotes the text of the Suspension Clause . . .
. . . and then tortures it:
Juan also notes that Congress—not the judiciary—might have final authority to determine whether Habeas Corpus may be suspended.
Certainly other branches of the armed forces—especially those technologically nonexistent in 1789—are but the smallest departure from the constitutional text. “Dire national emergency,” however, might include all sorts of things, like extreme recession, widespread disease, or the resurrection of Disco. So I think Juan’s textual analogy fails.
I offer a half-serious alternative: in moments of dire national emergency, perhaps another sort of “stretching the text” would be permissible. That is, supposing an onslaught of habeas petitions were truly a threatening burden, Congress need only argue that the mass filing of petitions by foreigners in U.S. courts is an “invasion.” Hmm…. Operation of the writ becomes reason to suspend it. Sounds more like a Kurt Vonnegut plot than a plausible argument, but they say necessity is the mother of invention.