What Robertson Misunderstood in Hamdan

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.

In analyzing whether Hamdan was entitled to petition for a writ of habeas corpus, Judge Robertson, citing Eisentrager, wrote:

The Supreme Court held that [the petitioners] were not entitled to habeas relief . . . for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.

But that clearly was not the case for Hamdan, who was held in Guantanamo, which the Supreme Court ruled in Rasul was US territory for habeas purposes:

“[T]he writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,” a district court acts “within [its] respective jurisdiction” within the meaning of §2241 as long as “the custodian can be reached by service of process.” 410 U. S., at 494–495. . . .Putting Eisentrager and Ahrens to one side, respondents contend that we can discern a limit on §2241 through application of the “longstanding principle of American law” that congressional legislation is presumed not to have extraterritorial application unless such intent is clearly manifested. EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991). Whatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within “the territorial jurisdiction” of the United States. Foley Bros., Inc. v. Fi-lardo, 336 U. S. 281, 285 (1949). By the express terms of its agreements with Cuba, the United States exercises “complete jurisdiction and control” over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses.

While Rasul was interpeting the reach of the habeas statute, it seems inconceivable to me that the Constitution's express mandate concerning the Great Writ would not reach as far as the the power of Congress to grant it. Historically, as the Rasul majority points out, it was not so. For the right to the great Writ extended as far as the King's power.

Clearly that could not be the basis for Judge Robertson's reasoning. Judge Robertson, simply glosses over this fact and continues his analysis, rebutting Hamdan's attempts to distinguish Eisentrager:

Here, however, as in Eisentrager, . . . Hamdan's exact affiliations is for our purposes, immaterial.

But is this what Eisentrager says? Hardly. What Eisentrager was referring to was whether the petitioners were civilian or military was immaterial, not that they were enemy aliens. Judge Robertson completely misconstrues Eisentrager on this point.

But now we come to Judge Robertson's most grievous error:

Hamdan's lengthy detention beyond American borders but within the jurisdictional authority of the United States is historically unique. Nevertheless, . . . his connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus.

This is simply a complete misreading of Eisentrager. What did Eisentrager say on this point?

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; © was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

Look at the facts the Eisentrager Court is relying on - the petitioner ARE enemy aliens. The petitioners are being held OUTSIDE US territory. The petitioner were tried OUTSIDE of US territory. The petitioners were at all times imprisoned OUTSIDE of US territory.

None of these are accepted facts in Hamdan. And these are no mere details. They are central to the Eisentrager decision. It is the fact that the petitioners were enemy aliens - an undisputed fact - that is paramount in Eisentrager:

The prisoners rely, however, upon two decisions of this Court to get them over the threshold -- Ex parte Quirin, 317 U.S. 1, and In re Yamashita, 327 U.S. 1. Reliance on the Quirin case is clearly mistaken. Those prisoners were in custody in the District of Columbia. One was, or claimed to be, a citizen. They were tried by a Military Commission sitting in the District of Columbia at a time when civil courts were open and functioning normally. They were arrested by civil authorities and the prosecution was personally directed by the Attorney General, a civilian prosecutor, for acts committed in the United States. . . . None of the places where they were acting, arrested, tried or imprisoned were, it was contended, in a zone of active military operations or under martial law or any other military control, and no circumstances justified transferring them from civil to military jurisdiction. None of these grave grounds for challenging military jurisdiction can be urged in the case now before us.

It is clear that Eisentrager is decided based upon the enemy alien status of the petitioners AND the lack of territorial nexus of the events, NOT because of the petitioners' failure to enmesh themselves in the United States.

The Constitution, if it applies, does not depend upon the actions of the person, but rather upon the actions of the government, as Rasul states. Judge Robertson writes of the "volition" of Hamdan, when it is the volition of the government which is the issue here. The government brought Hamdan to US territory. But according to Robertson's logic, Hamdan could have been held in prison in Washington, DC, but the Constitution would still not apply to him with regard to habeas corpus, whether an enemy alien or not. That simply does not square with Eisentrager, which relies principally on the fact tha the petitioners were indisputably enemy aliens:

Despite this, the doors of our courts have not been summarily closed upon these prisoners. Three courts have considered their application and have provided their counsel opportunity to advance every argument in their support and to show some reason in the petition why they should not be subject to the usual disabilities of nonresident enemy aliens. This is the same preliminary hearing as to sufficiency of application that was extended in Quirin, supra, Yamashita, supra, and Hirota v. MacArthur, 338 U.S. 197. After hearing all contentions they have seen fit to advance and considering every contention we can base on their application and the holdings below, we arrive at the same conclusion the Court reached in each of those cases, viz.: that no right to the writ of habeas corpus appears.

. . . The doctrine that the term "any person" in the Fifth Amendment spreads its protection over alien enemies anywhere in the world engaged in hostilities against us, should be weighed in light of the full text of that Amendment . . . If this Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. . . . Can there be any doubt that our foes would also have been excepted, but for the assumption "any person" would never be read to include those in arms against us? It would be a paradox indeed if what the Amendment denied to Americans it guaranteed to enemies. . . The decision below would extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies. The latter are entitled only to judicial hearing to determine what the petition of these prisoners admits: that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing. Ludecke v. Watkins, 335 U.S. 160. While this is preventive rather than punitive detention, no reason is apparent why an alien enemy charged with having committed a crime should have greater immunities from Executive action than one who it is only feared might at some future time commit a hostile act.

. . . We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

The dissent in Eisentrager correctly points out that the majority indeed provides a pseudo-habeas review on the question of whether the petitioers are in fact enemy aliens, and also concedes that were they held and tried in United States territory, they would have a right to a habeas review, irrespective of their volition. But that is one of two points the majority made - the main one being that the petitioners were in fact admitted enemy aliens.

Judge Robertson's opinion obliterates this requirement and instead holds that any alien ALLEGED to be an enemy without the sufficient territorial nexus has no Constitutional right to petition for habeas relief. This rule would grant to the Executive the unilateral and plenary power to strip persons of their Constitutional rights by mere allegation.

Indeed, it is utterly antithetical to the Great Writ. Interestingly, it appears to me that there is likely strong evidence that Hamdan was in fact an enemy combatant - he was bin Laden's driver for crissake. Thus, he would be subject to military law - including the Geneva Conventions. But Judge Robertson's decision does not require such a finding and will do serious damage to the ability of detained aliens to obtain rulings on their prisoner of war status, to invoke Geneva or to prove that they are in fact NOT enemy aliens.

Far from being the best one could hope for, as Lemieux and Greenwald assert, Judge Robertson's decision strikes me as about as bad as one could have feared. Certainly, it adds nothing to Eisentrager. It detracts from it.

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    Help! (none / 0) (#1)
    by Al on Thu Dec 14, 2006 at 05:40:12 PM EST
    My poor non-legal brain suspects this may be an interesting topic, but cannot understand a word of it. Could someone put this in layman's terms?

    Al... (none / 0) (#2)
    by Edger on Thu Dec 14, 2006 at 05:44:30 PM EST
    ...Unless I'm mistaken, Big Tent's first paragraph says it all. The rest is his supporting reasoning.

    The governent (none / 0) (#3)
    by Big Tent Democrat on Thu Dec 14, 2006 at 07:43:47 PM EST
    can say an alien is a terrorist and never have to prove it while holding someone indefinitely.

    Robertson took a big step backwards.

    Before a t least the government had to demonstrate that someone was a terrorist.


    That was clear... (none / 0) (#4)
    by Edger on Thu Dec 14, 2006 at 08:16:23 PM EST
    ...from the second and third sentence in your first paragraph that that was your conclusion, yes.

    Isn't that also basically Hornbergers' conclusion, or nearly identical in it's effect. re American citizens as well here?

    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.

    IOW, is "provide some evidence" merely as assertion until and if it is proven in a trial, which they will never have? Hornberger again:

    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.

    Not really (none / 0) (#5)
    by Big Tent Democrat on Thu Dec 14, 2006 at 08:58:43 PM EST
    This decision  makes clear that citizens will have habeas rights.

    Yes (none / 0) (#6)
    by Edger on Thu Dec 14, 2006 at 09:05:53 PM EST
    But so did Hornbergers' scenario.

    I meant in effect. He seems to be saying that regardless of habeas rights Americans can end up locked away indefinitely also, partly because they cannot be defendents in tribunals under the MCA.

    It seems to me that if true then habeas is a 'right' in name only, without real world effect when Bush decides to label an American "enemy combatant". No?


    Well (none / 0) (#7)
    by Big Tent Democrat on Thu Dec 14, 2006 at 09:19:53 PM EST
    I don't think that's right frankly.

    Americans can't be detained by military tribunals in the US.

    The Padilla case demonstrates this.



    I understand that... (none / 0) (#8)
    by Edger on Thu Dec 14, 2006 at 09:24:32 PM EST
    I guess what I'm asking is, what is there to protect an American that Bush(co) decides to label an enemy combatant from being held as long as, and in the same manner as, Padilla was? That appears to be what Hornberger is arguing.

    The Padilla case (none / 0) (#10)
    by Big Tent Democrat on Thu Dec 14, 2006 at 09:46:42 PM EST
    Hamdi v Rumsfeld.

    Well... ok... (none / 0) (#11)
    by Edger on Thu Dec 14, 2006 at 09:51:33 PM EST
    But it took him 3 1/2 years to get to that point. What is there to ensure it doesn't happen to someone else in, for example, this scenario?

    Thanks for your patience, and for this discussion, btw. I'm trying to learn something here.


    Okay. (1.00 / 2) (#12)
    by Gabriel Malor on Thu Dec 14, 2006 at 10:34:42 PM EST
    I'm still holding my breath.

    And if (none / 0) (#9)
    by Edger on Thu Dec 14, 2006 at 09:37:30 PM EST
    If an American citizen is arrested without ID on him... and accused of being an alien terrorist and labelled an enemy combatant (railroaded, IOW) ... in what legal proceeding will he ever have the opportunity to 'prove' he is an American citizen and therefore entitled to habeas rights?

    Ever? If not, it seem to me he is no better off than an alien without habeas rights.

    Or am I missing something fundamental here?

    Process (none / 0) (#13)
    by Gabriel Malor on Thu Dec 14, 2006 at 10:51:58 PM EST
    Here is the process you'd be entitled to were you (a citizen, I presume) picked up for terrorist activity.

    First, you cannot be "labelled an enemy combatant" by railroading. You must be afforded a "meaningful hearing" before you can be labeled an enemy combatant.

    You can thank Justice O'Connor for that from Hamdi v. Rumsfeld. That meaningful hearing is currently embodied in the Combatant Status Review Tribunal. Should you maintain that the CSRT doesn't afford you you constitutional rights, dicta in O'Connor's opinion indicate that the District Courts would then have jurisdiction to examine the procedures of the CSRT (though it is unclear whether they could actually rule on the merits of your case; in Hamdi, they did, but that was before the CSRT existed).

    Second, even if you are properly labeled an enemy combatant as a citizen you still have access to the constitutional habeas right, which means you can get your case heard in the federal courts.

    The gist of Section 2 of Judge Robertson's opinion this week is that the MCA alters the statutory habeas right, but does not reach the constitutional habeas right. That right applies to all citizens at all times (regardless of whether they are located or detained inside the territorial jurisdiction of the federal courts) except in case of rebellion or invasion when Congress explicitly suspends it.

    So, even as a properly labeled enemy combatant it's possible for you to challenge your detainment in federal courts. Again, a habeas petition does not necessarily give you the right to have the merits of your case heard in federal court. But it does give you the possibility of a change if the court decides that your treatment as a detainee is in violation of your constitutional rights.


    You may be correct... (none / 0) (#14)
    by Edger on Fri Dec 15, 2006 at 01:39:02 AM EST
    ...or you may not be correct. You'll certainly understand, I think though, when I remind you that your opinions have virtually no credibility with me Gabriel, and that were you to attempt to insert yourself into a face to face conversation I was having with someone out in the real world, i.e. not on a blog, and offer them unasked, I would invite you to un-invite yourself from the conversation immediately. Rather forcefully too, if you understand my meaning. I trust this won't happen again. This is not a question you need answer, btw.

    My questions here are for Big Tent, or any other lawyers for whom I have some respect. Thank you.

    Big Tent, my apologies for the ot interruption.


    RE: My question in Comment #9 (none / 0) (#15)
    by Edger on Fri Dec 15, 2006 at 02:19:57 AM EST
    Human Rights First Analyzes
    DOD's Combatant Status Review Tribunals:

    The Status Hearings Fail to Satisfy the Supreme Court's Ruling

    Administration officials argue that the status hearings are designed to satisfy the Supreme Court's decision in Hamdi v. Rumsfeld, which addresses the detention of a U.S. citizen captured in Afghanistan and now detained as an "enemy combatant" in South Carolina. Whether or not the hearings comply with Hamdi's instructions - and they appear to fall short, as described below - the decision most directly relevant to those still held at Guantanamo is Rasul v. Odah, which addressed the rights of the Guantanamo detainees. Under Rasul, Guantanamo detainees are entitled to seek review of the legality of their detention by filing habeas corpus petitions in U.S. courts. Slip Op. at 6. The Rasul Court also stressed the importance of assistance of counsel, stating that the detainee's claim of two-year detention "in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing - unquestionably describ[es] `custody in violation of the Constitution or laws or treaties of the United States.'" Slip Op. at 15 n. 15. The status hearings - which provide neither for review in federal court nor for assistance of counsel - do nothing to satisfy this ruling.

    The Status Hearings Fail to Satisfy Justice O'Connor's Minimum Standards

    It is a separate question whether, as the Defense Department maintains, the status hearings comport with Justice O'Connor's plurality opinion in Hamdi. There, Justice O'Connor discussed in dicta (part of the opinion not essential to the legal rule the Court set down) what kind of procedures might satisfy U.S. citizen Hamdi's right to challenge the legality of his detention. She noted that that right might be satisfied if the government provided Hamdi the procedures laid out in Army Regulation AR 190-8, § 1-6, which provides for battlefield hearings to resolve doubts about the legal status of detainees captured by the military in combat. was adopted by the Army to satisfy its obligations under Article 5 of the Third Geneva Convention regarding the rights of prisoners of war.

    To the extent Justice O'Connor's Hamdi opinion may be relevant to the Guantanamo detainees, it requires more than what the status hearings provide. Specifically, it requires at a minimum that:

        * The detainee has "a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Slip Op. at 1;
        * The detainee has notice of the grounds for his detention and an opportunity to be heard at a "meaningful time and in a meaningful manner." Slip Op. at 26; and
        * The detainee "unquestionably has the right to access to counsel." Slip Op. at 32.

    On all these scores, the status hearings fall short. Indeed, the status hearings do not even measure up to the military regulation they claim to mirror. [emphasis mine]
    Right to Counsel

    The status hearing procedures provide a "personal representative" to the detainee for the hearing, a feature the Pentagon is right to point out is not required by AR 190-8. But the "personal representative" is not a lawyer - as Justice O'Connor's opinion in Hamdi would require - and need not have either relevant professional training or any duty of loyalty toward his "client."

    My question in Comment #9 is still an open question for any lawyers but Gabriel, with the following change:

    If an American citizen is arrested without ID on him... and accused of being an alien terrorist and labelled an enemy combatant (railroaded, IOW) ... in what [meaningful] legal proceeding will he ever have the opportunity to 'prove' he is an American citizen and therefore entitled to habeas rights?

    Ever? If not, it seem to me he is no better off than an alien without habeas rights.

    Combatant Status Sham Tribunals even for aliens (none / 0) (#31)
    by Edger on Sat Dec 16, 2006 at 09:15:13 AM EST
    It would seem that the bush admin. has not enough faith in even it's own watered down and emasculated Combatant Status Sham Tribunals to believe that it will be able to justify it's initial "enemy combatant" designation and continued holding of many of the Gitmo detainees, and even though they don't care if they get caught in their lies, rather than be embarassed by their own ineptness and malice, they hope to be embarassed just by their own ineptness. Too bad. Like most eveything else they do, it's not working:

    Dec. 15, 2006
    By ANDREW O. SELSKY Associated Press Writer

    (AP) The Pentagon called them "among the most dangerous, best-trained, vicious killers on the face of the earth," sweeping them up after Sept. 11 and hauling them in chains to a U.S. military prison in southeastern Cuba.

    Since then, hundreds of the men have been transferred from Guantanamo Bay to other countries, many of them for "continued detention."

    And then set free.
    The Associated Press was able to track 245 of those formerly held at Guantanamo. The investigation, which spanned 17 countries, found:

    _Once the detainees arrived in other countries, 205 of the 245 were either freed without being charged or were cleared of charges related to their detention at Guantanamo. Forty either stand charged with crimes or continue to be detained.

    _Only a tiny fraction of transferred detainees have been put on trial. The AP identified 14 trials, in which eight men were acquitted and six are awaiting verdicts. Two of the cases involving acquittals _ one in Kuwait, one in Spain _ initially resulted in convictions that were overturned on appeal.

    _The Afghan government has freed every one of the more than 83 Afghans sent home. Lawmaker Sibghatullah Mujaddedi, the head of Afghanistan's reconciliation commission, said many were innocent and wound up at Guantanamo because of tribal or personal rivalries.

    _All 29 detainees who were repatriated to Britain, Spain, Germany, Russia, Australia, Turkey, Denmark, Bahrain and the Maldives were freed, some within hours after being sent home for "continued detention."
    Clive Stafford Smith, a British-American attorney representing several detainees, said the AP's findings indicate that innocent men were jailed and that the term "continued detention" is part of "a politically motivated farce."

    "The Bush Administration wants to be able to say that these are dangerous terrorists who are going to be confined upon their release... although there is no evidence against many of them," he said.
    A senior U.S. State Department official acknowledged that "We do not ask countries to detain them on our behalf, so when a decision is made by a country to move forward with an investigation for prosecution, that is something they have decided to do pursuant to their own domestic law."

    Is it any surprise that rather than holding meaningful tribunals the bush administration avoids even the illusion of meaningfullness?

    Instead they just hold, and torture, anyone they want, for years in many cases, then run them through their kangaroo courts and send them home.

    The bush administration has simply invented a set up job here so that they can blame the detainees home countries for releasing them, if they turn out to be angered and crazed enough after years in Gitmo to "hate" the US and join forces with a group like Al Qaeda to kill Americans, perhaps in Iraq?

    Better send more troops to Iraq I guess. Just look at all the terrorists there after all.

    "Up to 9/11, Al Qaeda could barely hold its act together", and in 2001 "had a grand total of precisely 198 sworn loyalists".

    How many real "enemy combatants" have been manufactured in Gitmo with this process?

    The whole damn country is being railroaded.


    NYT Investigation (none / 0) (#32)
    by Edger on Sat Dec 30, 2006 at 05:55:18 PM EST
    For Guantánamo Review Boards, Limits Abound
    As the hearing concluded, the detainee, who cannot be identified publicly under military rules, had a question. He is a citizen of Pakistan, he noted. He was arrested on a business trip to Thailand. On what authority or charges was he even being held?

    "That question," a Marine colonel presiding over the panel answered, "is outside the limits of what this board is permitted to consider."

    The law prohibits them from challenging their detention or treatment by writs of habeas corpus in the federal courts. Instead, they may only petition a single federal appeals court to examine whether the review boards followed the military's own procedures in reviewing their status as "enemy combatants."

    But an examination of the Guantánamo review boards by The New York Times suggests that they have often fallen short, not only as a source of due process for the hundreds of men held there, but also as a forum to resolve questions about what the detainees have done and the threats they may pose.

    I don't get this at all, why we're doing this. (none / 0) (#33)
    by aw on Sat Dec 30, 2006 at 09:09:12 PM EST
    He is a citizen of Pakistan, he noted. He was arrested on a business trip to Thailand. On what authority or charges was he even being held?

    I also don't get why large numbers of people are going along with this.  Doesn't anybody's conscience ever kick in with these people?


    Well (none / 0) (#34)
    by Edger on Sun Dec 31, 2006 at 06:40:57 AM EST
    I think that most people are opposed to not only the conditions in Guantanamo and to the treatament legal and otherwise of the people held there, but even to the existence of the place and to the idea that what is done there to them in any way helps to deal with terrorism in any useful way.

    Why there are people going along with it is a question of the psychological state of those people, IMO, and we see them comment here every day.

    Why the country stands for a sick and insignificant (in numbers) minority running the government and foreign policy without impeaching them is beyond me.

    Waiting them out is I think intrinsic support and complicity...

    I believe John Dean has the right idea.


    misinterpretation of the rationale? (none / 0) (#16)
    by Unsyndicated on Fri Dec 15, 2006 at 08:38:02 AM EST
    from the text:
    Robertson's reasoning on why Hamdan does not have a constitutional right to seek the Great Writ is flawed in its focus.

    (emphasis is mine)

    My interpretation (from reading Robertson's opinion) is that the court did not have jurisdiction to hear the case, and could, therefore, not grant Hamden the writ. The decision does not say anything about Hamden's rights.

    Ummm (none / 0) (#18)
    by Big Tent Democrat on Fri Dec 15, 2006 at 09:09:32 AM EST
    I fear you  did not read the opinion very closlely.

    There is a section titled "Why Hamdan Does Not Hve A Constitutional Right to Habeas Relief"


    quite (none / 0) (#20)
    by Unsyndicated on Fri Dec 15, 2006 at 11:00:08 AM EST
    Correct--Robertson's opinion is that Hamden does not have a Constitutional claim to the writ, but that was hardly at issue in the first place. On precedent, non-resident aliens have not been given that right. The statutory claim to the writ is denied because the court has no jurisdiction.

    hardly at issue? (none / 0) (#21)
    by Big Tent Democrat on Fri Dec 15, 2006 at 11:02:20 AM EST
    I am sorry, I think you do not understand the issue.

    A non-resident alien held in a US prison certainly has that right.

    Was HAmdan AN ENEMY alien was the issue.

    The point of my  diary.


    look at the precedent (none / 0) (#22)
    by Unsyndicated on Fri Dec 15, 2006 at 11:26:03 AM EST
    ...cited by Robertson, then you'll be better informed about the case.

    You mean Eisentrager? (none / 0) (#23)
    by Big Tent Democrat on Fri Dec 15, 2006 at 12:31:25 PM EST
    This whole post is about Eisentrager.

    Did you read my post?


    To wit (none / 0) (#24)
    by Big Tent Democrat on Fri Dec 15, 2006 at 12:37:35 PM EST
    From Robertson's decision, p. 19:

    It is the  Eisentrager case that appears to provde the controlling authority on the  availability of constitutional habeas to enemy aliens.

    Seriously, you need to read before you spout.


    please, stop with the rhetoric already (none / 0) (#26)
    by Unsyndicated on Fri Dec 15, 2006 at 03:06:01 PM EST
    Your entire argument is based on the premise that since Hamden is being held at a US military base he is entitled to the writ. Where is the precedent for that?

    Please read my post (none / 0) (#27)
    by Big Tent Democrat on Fri Dec 15, 2006 at 03:31:10 PM EST
    before commenting.

    You clearly have not.

    You said to read the precedents cited in Robertson;s opinion. I  did and discussed them.

    I just demonstrated to you that the controlling authority, according to Robertson, was Eisentrager.

    The question of whether Guantanamo was US territory for habeas purposes, a key question, was decided for statutory purposes by Rasul. There is strong reason to believe, as I argue in my post, that Rasul's reasoning would also apply to Constitutional habeas.

    But more importantly, I criticize Robertson for his misreading of Eisentrager on the importance of the undisputed fact that the petitioners were admitted enemy aliens whereas Hamdan was not.

    Seriously, read the post first next time.  


    See p 15 (none / 0) (#19)
    by Big Tent Democrat on Fri Dec 15, 2006 at 09:13:26 AM EST
    Oh, Edger, I was just so pleased. (none / 0) (#17)
    by Gabriel Malor on Fri Dec 15, 2006 at 08:56:50 AM EST
    BTD, it's nice to see some legal scholarship coming from someone other than me for a change. I disagree with your interpretation of Eisentrager as it applies to Hamdan, but we can tussle over that another time (maybe after my ConLaw final ;).

    Edger, sweet Edger, I was just so excited to see that BTD had you about two steps from accepting something I've been trying to explain to you for months. Your "well...ok..." comment was sweet music to my ears.

    I see, Gabriel (none / 0) (#25)
    by Edger on Fri Dec 15, 2006 at 01:03:42 PM EST
    that you've found another point to miss. I usually put it down to wilful obtuseness, but it's becoming clear that the 'wilful' modifier is inapplicable.

    These rethugs can write law all day long with holes in it big enough to stuff your swollen insecurities through, and you'll find some way to screw down your blinders tight enough to miss it till it's too late. Better go study for your GED. I hear you need it to work the mail room in most law firms these days.


    I am extremely impressed with you, Edger. (none / 0) (#29)
    by Gabriel Malor on Fri Dec 15, 2006 at 06:17:42 PM EST
    I liked the poetry of your response and checked. Google has (as of this moment) only two examples of the phrase "swollen insecurities" EVER.

    That makes you something special, y'know?

    [BTW, finals done. Yay!]


    Congratulations on your GED.! (none / 0) (#30)
    by Edger on Fri Dec 15, 2006 at 06:22:35 PM EST