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.