A Judicial Victory for the Leader

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The
first
court decision
(.pdf) to interpret and apply the legislative
atrocity known as the “Military Commissions Act of 2006″ was issued
yesterday in the case of Hamdan v. Rumsfeld. The
decision was a major victory for the Bush administration’s attempt
to vest the President with the power to imprison individuals –
even for life – without according them any meaningful opportunity
to contest the validity of their imprisonment.

The district
court ruled that (1) the MCA successfully stripped federal courts
of jurisdiction to hear habeas corpus petitions filed by “war
on terrorism” detainees, and (2) under controlling Supreme Court
precedent, “enemy aliens” who have no substantial connection to
the U.S. (i.e., never resided inside the U.S.) have no
constitutional right to seek habeas corpus review. As a result,
the court dismissed the case of the Guantanamo detainee seeking
habeas review here and, in essence, upheld the Bush administration’s
power to detain such “enemy combatants” forever while denying
the detainees all access to our courts.

Several
observations about this decision:

(1)
The plaintiff-detainee in this case is Salim Ahmed Hamdan –
the same Hamdan whose case led to the U.S. Supreme Court’s ruling
earlier this year that the Bush administration’s Guantanamo military
commissions violated both federal law and the Geneva Conventions,
the decision which led to enactment of the Military Commissions
Act. The ruling yesterday was the result of Hamdan’s case returning
to the district court level once the Supreme Court ruled that
he could not be tried in the Guantanamo military commissions established
by the administration prior to enactment of the MCA.

Hamdan,
who acted as a driver on occasion for Osama bin Laden, vehemently
denies the administration’s accusation that he was involved in
a “conspiracy” to commit terrorist acts (the only charge against
him). He has been in U.S. custody since late 2001, and in Guantanamo
since early 2002. He has been seeking the right to prove his innocence
by petitioning our federal courts for habeas corpus relief.

Once the
MCA was enacted, the Bush administration moved to dismiss all
habeas corpus petitions – including Hamdan’s – on the
ground that Congress has now stripped federal courts of jurisdiction
to hear such claims. The ruling yesterday granted that motion
and dismissed Hamdan’s petition.

(2)
The judge who issued this ruling is District Judge James Robertson,
a Clinton appointee who ruled originally that Hamdan could not
be tried before a Guantanamo military commission that had not
been authorized by Congress (it was that ruling that ended up
in the Supreme Court). Robertson also is the federal judge who
resigned
from the FISA court
in protest of the Bush administration’s
warrantless eavesdropping program.

Clearly,
Robertson’s ruling is not the by-product of pro-administration
sentiment. Rather, he obviously felt constrained to enforce the
MCA by his (not necessarily correct) understanding of controlling
Supreme Court authority on the question of whether accused enemy
aliens – who have been detained on foreign soil and who have
no connection to the U.S. – have a constitutional right to
access U.S. federal courts for habeas corpus petitions. Robertson’s
ruling that they have no such constitutional right (and that Congress
therefore has the power to deny habeas access to such aliens under
the MCA) is what led him to dismiss Hamdan’s petition.

(3)
The judge did not rule that the MCA constitutes a general
“suspension” of the right of habeas corpus under the Suspension
Clause of Art. I, Sec. 9. Quite the contrary, the court found
that Congress did not intend to suspend habeas corpus,
and, independently, that Congress could not constitutionally
suspend the right of habeas corpus (because there is no “rebellion
or invasion” as required by the Constitution).

Rather than
having “suspended” habeas corpus rights, the court ruled that
Congress intended with the MCA only to block federal courts from
entertaining habeas petitions from alien detainees. Thus,
the question which the court was required to answer was this:
Do aliens – who have no connection to the U.S. and who are
detained outside of the U.S. – have a constitutional right
to habeas corpus (which no Congressional statute could deny)?

To answer
that question, the court relied upon prior Supreme Court rulings
– in particular the 1950 case of Eisentrager
v. Johnson
, which dismissed habeas corpus petitions brought
by German nationals who were convicted of war crimes in China
by a post-WWII U.S. military tribunal. Judge Robertson concluded
that, under Eisentrager, aliens with no U.S. connections
have no constitutional right to bring habeas corpus petitions,
and Congress is therefore permitted to strip federal courts of
jurisdiction to entertain such petitions.

(4)
Whether this ruling is correct largely depends upon how one understands
the Supreme Court’s ruling in Rasul
v. Bush
, the 2004 case in which the Supreme Court held
that Guantanamo detainees have the right of habeas corpus.

The Rasul
court held that the statute which provides habeas jurisdiction
to federal courts (28 U.S.C. 2241) includes not only petitions
filed by U.S. citizens, but also petitions filed by aliens, and
applies even to aliens detained in territories over which the
U.S. maintains “complete jurisdiction and control” even if not
ultimate sovereignty (i.e., Guantanamo Bay, Cuba). That
is how Guantanamo detainees have been filing habeas petitions
– because Rasul ruled that the habeas jurisdiction
statute applies to petitions brought by aliens.

But it was
the Rasul Court’s decision which Congress sought to overturn
by enacting the MCA, which expressly amends the habeas statute
to strip federal courts of the jurisdiction found by Rasul.
The plaintiff here argued that Rasul recognized not only
a statutory right for aliens to file habeas petitions, but
also a constitutional right to do so. Judge Robertson disagreed.

(5)
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.

(6)
It is quite possible – assuming the make-up of the
Supreme Court remains the same – that the Court will reverse
this ruling by holding that all alien detainees have
a constitutional right to habeas corpus review (Justice Stevens,
in his majority Rasul opinion, clearly laid the foundation
for such a ruling, if he did not in fact already make it). There
are multiple other grounds on which this ruling specifically,
and the constitutionality of the MCA generally, may be vulnerable
on appeal.

(7)
The principal fault here lies with the 109th Congress (and, of
course, the administration it so faithfully served), not with
Judge Robertson (unfortunately, whether there is a constitutional
habeas right for aliens with no connection to the U.S. is, under
controlling Supreme Court precedent, less than crystal clear).

What is
so radical and indescribably regressive is the Congress’ enactment
of a law which expressly denies habeas rights to everyone in the
world other than U.S. citizens. Not only did the Founders repeatedly
emphasize that the right of habeas corpus is the most critical
safeguard against tyranny from the Executive branch (and never
drew any distinction between citizens and non-citizens),
but the statute granting habeas jurisdiction to federal courts
(sec. 2241) was the very first statute ever enacted by
the U.S. (in 1789) which bestowed jurisdiction to the federal
courts. That is how paramount a right the Founders believed habeas
petitions to be.

The history
of our country has been to progressively extend and expand
habeas rights, not to restrict them. As Rasul explained
(emphasis added):

Congress
has granted federal district courts, u201Cwithin their respective
jurisdictions,u201D the authority to hear applications for habeas
corpus by any person who claims to be held u201Cin custody in violation
of the Constitution or laws or treaties of the United States.u201D
28
U.S.C. 2241
(a), (c)(3). The statute traces its ancestry
to the first grant of federal court jurisdiction: Section 14
of the Judiciary Act of 1789 authorized federal courts to issue
the writ of habeas corpus to prisoners u201Cin custody, under or
by colour of the authority of the United States, or committed
for trial before some court of the same.u201D Act of Sept. 24, 1789,
ch. 20, 14, 1 Stat. 82.

In 1867,
Congress extended the protections of the writ to u201Call cases
where any person may be restrained of his or her liberty in
violation of the constitution, or of any treaty or law of the
United States.u201D Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. See
Felker v. Turpin, 518
U.S. 651
, 659–660 (1996). . . . As it has evolved over
the past two centuries, the habeas statute clearly has
expanded habeas corpus u201Cbeyond the limits that obtained during
the 17th and 18th centuries.u201D Swain v. Pressley, 430
U.S. 372
, 380, n. 13 (1977).

The MCA –
passed in a pre-election frenzy with virtually no thought or deliberation
– drastically reverses that 210-year trend and deliberately
seeks to limit habeas rights as narrowly as possible. Put another
way, it seeks to vest the maximum possible power in the President
to order people imprisoned – even for life – with no
opportunity to contest the validity of the accusations against
them or the treatment to which they are subjected. That, as has
been repeatedly noted, is a power which not even the British King
possessed.

It
is one thing to warn of these abuses in the abstract. But we will
start to see more and more actual cases of human beings who –
as a result of the MCA – face life imprisonment under the
most inhumane conditions imaginable based on nothing more than
George Bush’s unreviewed accusation that they are Guilty of Terrorism.
The attack on our national character, and the abandonment of our
most defining values, continues unabated.

The
Washington Post’s
article on the decision is here.
Statements from lawyers for the Center for Constitutional Rights
are here.

December
18, 2006

Glenn
Greenwald [send him mail]
is the author of How
Would a Patriot Act?
See his blog Unclaimed
Territory
, where this first appeared.

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