What Robertson Misunderstood in Hamdan
Posted on Thu Dec 14, 2006 at 03:57:42 PM EST
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Glenn Greenwald and Scott Lemieux, in their analyses of Judge Robertson's decision in Hamdan, seem to me to miss a glaring flaw in the opinion. Robertson's reasoning on why Hamdan does not have a constitutional right to seek the Great Writ is flawed in its focus. It accepts that an allegation by the executive that a detainee is an enemy alien is sufficient to strip a person of his constitutional right to seek habeas relief. Lemieux writes:
Under the circumstances, the decision is actually about as good an outcome for opponents of arbitrary detentions as could be expected. Robertson held that Congress has not suspended the writ of habeas corpus for American citizens--it lacks the power to suspend the writ because there is not an ongoing "rebellion or invasion."
Actually, I think that is not so. Judge Robertson's reasoning actually puts aliens at much greater risk of lacking habeas rights than they would otherwise have been. I'll explain why I think so on the flip.
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