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Wednesday, Dec 13, 2006, 3:21 pm

Judge Sides With Bush Against Hamdan, Agrees Court Has No Jurisdiction

By Brian Zick
Matt Apuzzo for AP reports:
A federal judge upheld the Bush administration's new terrorism law Wednesday, agreeing that Guantanamo Bay detainees do not have the right to challenge their imprisonment in U.S. courts.

The ruling by U.S. District Judge James Robertson is the first to address the new Military Commissions Act and is a legal victory for the Bush administration at a time when it has been fending off criticism of the law from Democrats and libertarians.
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"This is the first time in the history of this country that a court has held that a man may be held by our government in a place where no law applies," said Barbara Olshansky, an attorney with the Center for Constitutional Rights, which has handled many detainee cases.
Lyle Denniston at SCOTUSblog has more:
U.S. District Judge James Robertson, in a mixed ruling on constitutional and statutory law, ruled on Wednesday that Congress had not validly suspended the historic "writ of habeas corpus" in the new Military Commissions Act of 2006. Robertson, however, found that Congress had legally ordered the dismissal of all pending habeas cases filed in U.S. federal courts by foreign nationals being held by the U.S. military. Thus, the judge dismissed the case of Salim Ahmed Hamdan, who now could face war crimes charges before a new "military commission." Finally, Robertson ruled that Hamdan, as an alien with no voluntary ties to the U.S., had no constitutional right to challenge his detentioin in federal court.

The only individuals who could benefit from Robertson's ruling on the question of suspending habeas would be those who were taken captive during the war on terrorism and were either U.S. citizens, or were foreign nationals who -- unlike Hamdan -- had established voluntarily "a significant relationship" to the U.S., by living here or by otherwise establishing such a relationship. This latter aspect, if followed by other courts, could be of benefit in the case pending in the Fourth Circuit Court involving a permanent resident alien who was captured in his home in Peoria, Ill., and is still being held captive by the U.S. military.
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Robertson did not rule on an array of constitutional issues that Hamdan's lawyers had raised when the case returned to District Court from the Supreme Court. Having found that Congress had withdrawn his jurisdiction to continue to review Hamdan's habeas case, the judge said he would express no view on whether Congress had provided an adequate substitute for habeas review, whether Congress had acted unconstitutionally in barring judicial enforcement of the Geneva Conventions on treatments of prisoners, whether the new Act is an invalid form of legislative punishment (a "bill of attainder"), or whether it violates constitutional guarantees of legal equality.

Hamdan's lawyers have the option of appealing the dismissal to the D.C. Circuit Court, or to seek direct review in the Supreme Court. Similarly, the government could pursue one or the other of those paths if it wishes to challenge Robertson's holding on the suspension issue; since it prevailed on that issue so far as Hamdan is concerned, a government appeal would seem unlikely.

Here is the conclusion of Robertson's decision: "Congress's removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutiional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus. Hamdan's habeas petition must accordingly be dismissed for want of subject matter jurisdiction."
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