Jon Kyl: “Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. That is what they did in Ex Parte…”

“Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. That is what they did in Ex Parte McCardle. I assume that we may see an unhappy dissent from the court's order from one or two of the Justices--there may be some members of the court who refuse to accept McCardle and article III. But I think that a majority of the court would do the right thing--to send Hamdan back to the military commission, and then allow him to appeal pursuant to section 1405 of this bill. The court also may well request a round of briefing on the effect of the effect on the Hamdan case. I suppose that a lawyer in the SG's office can look forward to rereading Ex Parte McCardle and the debates on the case in Hart & Wechsler's. But again, I don't think that this will change the result. As for legislative history, I think it usually is regarded as an element of the canons of construction. It gives some indication of what Congress at least understood what it was doing--the context in which a law was enacted. Although, I understand that Justice Scalia does not read legislative history. I suppose that for his sake, we will have to strive to be exceptionally clear in the laws that we write.”