[Ppnews] Federal judge invokes Military Commissions Act to reject Gitmo habeas petition

[Political Prisoner News]

Wednesday, December 13, 2006
http://jurist.law.pitt.edu/paperchase/2006/12/federal-judge-invokes-military.php
Federal judge invokes Military Commissions Act to reject Gitmo habeas petition
<http://jurist.law.pitt.edu/jurist_search.php?q=Bernard 
Hibbitts>Bernard Hibbitts at 4:31 PM ET
[]

[JURIST] A federal judge Wednesday 
<http://natseclaw.typepad.com/natseclaw/files/hamdan_121306_order.pdf>dismissed 
[ruling, PDF] a habeas corpus petition brought by Guantanamo detainee 
<http://www.trial-ch.org/en/trial-watch/profile/db/facts/salim-ahmed_hamdan_453.html>Salim 
Hamdan [Trial Watch profile], finding it was clearly barred under the 
<http://jurist.law.pitt.edu/paperchase/2006/09/retired-judges-urge-congress-to-retain.php>controversial 
habeas-stripping language [JURIST report] of the new 
<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf>Military 
Commissions Act (MCA) [text, PDF] even though it was pending at the 
time the Act was passed. Agreeing with a 
<http://jurist.law.pitt.edu/paperchase/2006/10/doj-tells-federal-courts-they-lack.php>position 
[JURIST report] on pending habeas petitions taken earlier this fall 
by the US Department of Justice, US District Judge James Robertson 
wrote in the first ruling to construe the MCA:
Hamdan's lengthy detention beyond American borders but within the 
jurisdictional authority of the United States is historically unique. 
Nevertheless, as the government argues in its reply brief, his 
connection to the United States lacks the geographical and volitional 
predicates necessary to claim a constitutional right to habeas 
corpus. Petitioner has never entered the United States and 
accordingly does not enjoy the "implied protection" that accompanies 
presence on American soil. Guantanamo Bay, although under the control 
of the United States military, remains under "the ultimate 
sovereignty of the Republic of Cuba." Presence within the exclusive 
jurisdiction and control of the United States was enough for the 
Court to conclude in Rasul that the broad scope of the habeas statute 
covered Guantanamo Bay detainees, but the detention facility lies 
outside the sovereign realm, and only U.S. citizens in such locations 
may claim entitlement to a constitutionally guaranteed writ...

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 
unconstitutional, 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.

In the context of his ruling Robertson left unaddressed Hamdan's 
general arguments that the Military Commissions Act is 
unconstitutional "because it does not provide an adequate substitute 
for habeas review, because it violates the principle of separation of 
powers by instructing the courts to ignore the Supreme Court's ruling 
that the Geneva Conventions afford judicially enforceable protections 
to petitioner Hamdan, because it is an unlawful Bill of Attainder, 
and because it violates Equal Protection."

Robertson initially granted Hamdan's habeas petition at the initial 
stage of the Hamdan v. Rumsfeld case in 2004, holding - as he 
explained Wednesday - that "he could could not be tried lawfully 
before a military commission that had not [then] been approved by 
Congress." Robertson's ruling was 
<http://jurist.law.pitt.edu/paperchase/2006/06/breaking-news-supreme-court-rules.php>upheld 
on appeal [JURIST report] by the US Supreme Court in June this year.


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