Detainee Hamdan Loses Bid to Challenge Detention

Federal Judge James Robertson 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.

It was Judge Robertson who granted Mr. Hamdan’s habeas petition in November 2004, abruptly halting his war crimes trial in the middle of proceedings at Guantánamo by ruling that the process was fatally flawed.

But in his decision Wednesday, the judge said circumstances had changed fundamentally with enactment of the new law. And not only is Mr. Hamdan barred from a challenge under the habeas statute, the judge said, he cannot follow the usual second avenue to bring a habeas challenge — invoking the Constitution — because it is unclear that noncitizens at Guantánamo have that right.

The opinion is here (pdf). TalkLeft reader Scribe addresses the decision in this diary.

For the non-lawyers in the audience, the sum and substance of this opinion is that the thugs in Congress who wrote the Torture Act and their masters in the White House have won, and won big, today. They managed to succeed in negating the power of the federal courts to consider habeas corpus applications, while still persuading the same federal courts they had not "suspended" the writ.

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    What this means... (5.00 / 1) (#1)
    by LarryE on Thu Dec 14, 2006 at 12:46:11 AM EST
    ...if I understand correctly, is that if this is not overturned, it is US law that the president can on his own authority seize any non-citizen anywhere and imprison them for any length of time without having to bring any charges and without any possibility of being challenged in the courts.

    What have I missed?

    imprison (5.00 / 1) (#2)
    by Jen M on Thu Dec 14, 2006 at 05:35:53 AM EST
    and torture, you missed 'torture'

    I regret (none / 0) (#4)
    by Molly Bloom on Thu Dec 14, 2006 at 08:40:38 AM EST
    having to give you a 5 on this. I keep thinking of Justice Jackson when these issues come up. What would he think?  


    What you have missed: (1.00 / 1) (#8)
    by Gabriel Malor on Thu Dec 14, 2006 at 01:52:14 PM EST
    For starters, it would help if you read the opinion.

    You are absolutely wrong when you say that "any non-citizen anywhere and imprison them for any length of time without having to bring any charges and without any possibility of being challenged in the courts." Each and every assertion you made is contradicted by Judge Robertson in his ruling.

    (By the way, I feel quite vindicated by this ruling. I've been saying the same thing for months about the applicability of statutory versus constitutional habeas, about habeas and aliens, and about habeas and federal court jurisdiction. Big w00t w00t for me!)

    Contrary to the hyperbolic (mis)understanding of LarryE, the ruling in this week's Hamdan v. Rumsfeld says that a non-citizen who has no claim to constitutional habeas can be stripped of his statutory habeas by an act of Congress. The MCA being such an act, Hamdan has no right to petition the federal courts.

    I'll rephrase LarryE's formulation to make it accurate: the MCA permissibly removes habeas from "a non-citizen enemy located outside the territory of the United States at all times and imprison them outside the territory of the United States for the length of hostilities without having to bring any charges (as allowed by the Geneva Convention (III)) and with possibilities for challenge in the Combatant Status Review Tribunal (as per Hamdi v. Rumsfeld), in their Military Tribunal should they receive one (as per the Supreme Court case Hamdan v. Rumsfeld) and in the US District Court for the District of Columbia post-Tribunal ruling (as per the MCA 2006)."

    Now that's better.

    Also, if cpinva should see this, you should check out the second section of the judge's ruling. It specifically addresses your concerns about the constitutional habeas clause and cases of rebellion and invasion.

    Finally, Edger gets it wrong once again when he claims that citizens can be denied habeas under the MCA. Any number of cases would make that clear (and I've talked about and provided links to all of them here at TalkLeft before), but this week's Hamdan would work, as would the Supreme Court cases, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Rasul v. Bush. Also, simply reading the text of the MCA would be a good place to start.

    Never has someone done so much to ignore the law than our little Edger.


    Here is.. (5.00 / 1) (#9)
    by Edger on Thu Dec 14, 2006 at 02:08:44 PM EST
    ...another one for you to run away from and conveniently ignore again, Gabe.

    Jose Padilla:

    Glenn Greenwald:
    As I have said many times, the most astounding and disturbing fact over the last five years -- and there is a very stiff competition for that title -- is that we have collectively really just sat by while the U.S. Government arrests and detains people, including U.S. citizens, and then imprisons them for years without any charges of any kind. What does it say about our country that not only does our Government do that, but that we don't really seem to mind much?

        Along those lines, it is hard to express the contempt merited by the drooling sociopaths who not only endorse this behavior but, with what can only be described as serious derangement, laugh about it and revel in its cruelty and its lawlessness.

    Vindication (5.00 / 1) (#10)
    by squeaky on Thu Dec 14, 2006 at 02:08:45 PM EST
    By the way, I feel quite vindicated by this ruling......Big w00t w00t for me!

    Wonder if those who supported the following felt the same sort of glee:

    The Reichstag Fire Decree (Reichstagsbrandverordnung in German) is the common name of the decree issued by German president Paul von Hindenburg in direct response to the Reichstag fire of February 27, 1933. The decree nullified many of the key civil liberties of German citizens. With Nazis in key positions of the German government, the decree was used as the legal basis of imprisonment of anyone considered to be opponents of the Nazis, and was used to suppress publications not considered "friendly" to the Nazi cause. The decree is considered by historians to be one of the key steps in the establishment of a one-party Nazi state in Germany.

    Wonder what happened to those who felt vindicated back then?


    Stunning insight. (none / 0) (#12)
    by Gabriel Malor on Thu Dec 14, 2006 at 02:42:15 PM EST
    Once again, kudos to you for discovering such a rare and insightful analogy. How in the world could I have missed the similarity between the Nazis taking over the Weimar democracy and the US court system upholding laws passed by Congress at the request of the President???

    Glad you agree (5.00 / 1) (#13)
    by squeaky on Thu Dec 14, 2006 at 02:47:04 PM EST
    Yes the parallels are stunning. That explains why Bush has done everything possible to thwart a full investigation of the WTC bombing.

    Senator Waxman's turn.


    Wow, back to the books. (1.00 / 1) (#15)
    by Gabriel Malor on Thu Dec 14, 2006 at 03:00:17 PM EST
    I didn't expect that reading a post on TalkLeft would make me roll my eyes and decide that maybe my time is better spent studying for finals, but finding a Truther in our midst has done it! Good luck with the reality-based world, squeaky.

    Oh, and I'm not sure how things are in your parallel universe, but here in reality it's Representative Waxman.



    We're all here... (none / 0) (#16)
    by Edger on Thu Dec 14, 2006 at 03:06:44 PM EST
    ...seeking the truth, Gabe. At least I thought we were. Do you have some problem with or objection to truth?

    If so... (none / 0) (#17)
    by Edger on Thu Dec 14, 2006 at 03:08:38 PM EST
    ...your time might be better spent studying concepts other than your 'finals'.



    Aw, kitchen too hot (none / 0) (#18)
    by squeaky on Thu Dec 14, 2006 at 03:09:06 PM EST
    it's Representative Waxman.
    Thanks for the correction, you  do have some talent..... as a proofreader.

    Good luck, hope you get your GED.


    Bye... (none / 0) (#19)
    by Edger on Thu Dec 14, 2006 at 03:14:00 PM EST
    ...Gabe. We'll have to do this again sometime, huh? ;-)

    Probably only because... (none / 0) (#14)
    by Edger on Thu Dec 14, 2006 at 02:49:41 PM EST
    ...it's a moral equivalency, Gabriel. You've never had any trouble missing the point here before when it comes to moral questions that I've noticed, so why should this one present any serious challenge?

    Don't complain though (none / 0) (#11)
    by Edger on Thu Dec 14, 2006 at 02:38:33 PM EST
    ...the president has the power to order the military arrest and incarcerate any number of Americans suspected of terrorism. Americans would still have the right to file a petition for writ of habeas corpus in federal court because the Military Commissions Act cancelled that right only for foreigners, not Americans. Keep in mind, however, that a habeas corpus hearing is not a full-blown trial to determine guilt or innocence but is simply designed to determine whether the government has legal justification for holding a prisoner. All the government would have to do at the habeas corpus hearings is provide some evidence that the Americans it is holding in military custody have engaged in some act of terrorism and then cite the Second Circuit opinion and the Military Commissions Act in support of its power to continue detaining them.
    How does an American who is labeled an enemy combatant ultimately get tried? Answer: he doesn't. Under the Military Commissions Act, trial by military tribunal is limited to foreigners. So, even though Americans still have the use of habeas corpus (so far) to test whether their detention is lawful, if the Supreme Court ultimately upholds the "unlawful enemy combatant" designation for people accused of terrorism, Americans will be returned to indefinite military custody as "unlawful enemy combatants" if the government has provided some evidence of terrorism at the habeas corpus hearing.

    The irony is that while foreigners will be accorded the kangaroo tribunal treatment, Americans accused of terrorism will continue to languish in military prison indefinitely without the benefit of a trial. Of course, given that the tribunals will have the power to impose the death penalty, Americans might do well not to complain about their indefinite detention.

    Citizens too. (none / 0) (#3)
    by Edger on Thu Dec 14, 2006 at 07:12:15 AM EST
    As far as I know the MCA bars US citizens as defendents in the tribunals, but there is nothing that bars US citizens from being designated "enemy combatants"...

    So it appears that US citizens may, in effect, have even less rights, that non-citizens labelled "enemy combatants", and may be held forever at the 'pleasure' of the Mr. Bush.


    MCA (5.00 / 1) (#5)
    by Unsyndicated on Thu Dec 14, 2006 at 09:20:15 AM EST
    Robertson's rationale is that MCA makes clear through its "statutory language" that his court has no jurisdiction to hear the case. It's apparently a revision of DTA, which failed against Hamden in the SCOTUS case. If you look at Robertson's opinion you will see his appeal to precedent for his decision. I assume this case will go to SCOTUS eventually.

    Glenn (none / 0) (#6)
    by Edger on Thu Dec 14, 2006 at 09:42:02 AM EST
    Greenwald has a very good post on it today.
    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.

    America can never again be thought... (5.00 / 1) (#7)
    by Bill Arnett on Thu Dec 14, 2006 at 01:30:59 PM EST
    ...of as a beacon to freedom, equal rights, freedom of speech, and its reputation for doing good in the world has been shredded beyond belief.

    Until this maladministration is out of office or in jail and the MCA and Patriot act repealed, the world will continue to regard Americans as the "barbarians at the gate" and the greatest single threat to world peace.