Thursday, December 14, 2006

Judge Upholds Congress' Unconstitutional Suspension of Habeas Corpus

From TalkLeft:
Federal Judge James Robertson [ed.: the judge who granted Hamdan’s habeas petition in November 2004] has ruled in Hamdan v. Rumsfeld that Salim Ahmed Hamdan cannot challenge his confinement at Guantanamo because of the Military Commissions Act passed in September, which prevents the detainees from bringing habeas challenges.
What this means is that the Bush Administration has successfully convinced a court that Congress can suspend habeas corpus without there having been a "rebellion" or "invasion," and without considering it a "suspension of habeas corpus"--which would, of course, be unconstitutional. He did this by concluding, in essence, that the suspension only applies to non-citizens under the jurisdiction and control of the United States but not on U.S. soil, and that this set of persons do not have constitutional rights.

How Appealing has a copy of the decision here.

Glenn Greenwald has more on on this over at his place. Here's the upside of the decision:
As Lyle Denniston notes, Judge Robertson's ruling heavily depends upon the fact that Hamdan has no established connections to the U.S. -- i.e., he never voluntarily entered the U.S., never resided here, etc. The decision makes clear (albeit in a non-binding way) that any alien who (unlike Hamdan) does have strong ties to the U.S. (such as legal residents here in the U.S.) would have a constitutional right to petition a court for habeas corpus relief and Congress could not deny that right.

Thus, at least according to this ruling, it is unconstitutional for Congress to deny legal residents (such as Ali Saleh Kahlah al-Marri) access to federal courts for habeas petitions. Since the MCA does purport to strip even legal residents of that right, Judge Robertson's ruling, in essence, concluded that that part of the MCA is unconstitutional.

The MCA does not purport to strip habeas rights for U.S. citizens. Thus, if Judge Robertson's decision is correct and upheld, it would mean that (a) U.S. citizens, along with alien detainees who have a substantial connection to the U.S., would have the right to file habeas petitions in federal court, but (b) alien detainees with no such connection (the overwhelming majority of detainees in U.S. custody) would have no such right.
(emphasis added)

Update:

Armando has more legal analysis at TalkLeft.

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