Terrorism & Security
posted December 14, 2006 at 12:15 p.m.

Federal judge says foreign Guantanamo detainees may not sue

But judge also says attempt to deny habeas corpus to legal immigrants is unconstitutional.

By Tom Regan | csmonitor.com

In a decision that backs a key portion of the Military Commissions Act (MCA), a federal judge has ruled that foreign prisoners held at the US prison camp Guantánamo Bay, Cuba, may not sue in US courts for their freedom. But US District Judge James Robertson also ruled that the law's attempt to deny that right to legal US immigrants was unconstitutional.

The Los Angeles Times reports the ruling came in the case of Salim Ahmed Hamdan, a Yemeni national and the onetime driver for Al Qaeda leader Osama bin Laden. Mr. Hamdan is charged with conspiring to commit terrorism.



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"Congress unquestionably has the power to establish and define the jurisdiction of the lower federal courts," [Judge Robertson] wrote in a 22-page opinion. Until some recent decisions, he said, it had always been understood that "an alien captured abroad and detained outside the United States" did not have a right to sue in a federal court. Hamdan was captured in Afghanistan, and Guantanamo Bay is, technically, the sovereign territory of Cuba, Robertson noted.

However, the Constitution protects the right of habeas corpus for anyone living in the United States, the judge said. The Constitution says this right may be "suspended" during times of "rebellion or invasion."

"Neither rebellion nor invasion was occurring at the time the MCA was enacted," Robertson said, and Congress did not claim otherwise.

Jurist writes that Robertson's ruling leaves unanswered several points in Mr. Hamdan's general argument that the MCA is unconstitutional. Among his arguments, Hamdan claims the MCA does not offer a substitute for habeas corpus review and that it violates the separation of powers by undermining the Supreme Court's ruling that the Geneva Conventions apply.

The New York Times reports that Robertson had been the judge who originally granted Hamdan's habeas corpus petition in 2004, ruling that the process set up by President Bush was "fatally flawed."

Reuters reports that Hamdan had won "an historic victory" earlier this year, when the US Supreme Court agreed with Robertson that President Bush had overstepped his authority when he created a military tribunal to try suspects detained at Guantanamo. In response, Congress enacted the law quoted by Judge Robertson in his dismissal of Hamdan's suit, which ends the right of detainees held abroad to sue in US courts and also authorizes tough interrogation methods and the creation of military tribunals.

The New York Times also says this case is almost certain to make its way back to the US Supreme Court before the issue is finally settled.

The Daily Telegraph of Australia reports that the ruling has brought swift condemnation by legal groups and from the families of detainees being held in Guantanamo.

"This is the first time in the history of this country [the US] that a court has held that a man may be held by our government in a place where no law applies," said Barbara Olshansky, deputy legal director of the US Centre for Constitutional Rights.

The Age reports that the father of David Hicks, an Australian who is expected to be among the first group of five detainees to be tried by the military tribunal, called the ruling "disgusting." But Mr. Hicks and other detainees will probably have to wait for a hearing until after the Supreme Court reviews the MCA.

The Associated Press reports that a Justice Department representative said the agency was pleased with the ruling. Spokeswoman Kathleen Blomquist noted that the MCA offers detainees challenges to both their detention and tribunal rulings, which she says "is more process than the United States has ever provided to enemy combatants in our past conflicts."

However, Newsday reports that Sen. Patrick Leahy (D) of Vermont, the incoming head of the Senate Judiciary Committee, has already said he plans to ask the Bush administration tough questions about antiterrorism issues, including the treatment of detainees at Guantanamo. If the White House doesn't answer, Leahy says he will take further steps.

"I expect to get the answers. If I don't, then I believe we should subpoena, use the subpoena for the questions," Leahy said after a speech at Georgetown Law Center on his agenda for his committee next year.

"If the president wants to claim executive authority, let him do so," he said, "and then we can determine where we go from there"...

Leahy also said he'll create a new Human Rights and the Law subcommittee, to be chaired by Sen. Dick Durbin (D-Ill.). And he'll seek to restore habeas corpus rights to war-on-terror detainees.

Finally, Reuters reports that 16 Saudis who were held prisoner at Guantanamo were returned to their country Thursday. Officials said they would be allowed to see their families, but didn't say when they would be released. Earlier this year, 29 Saudis were sent back home. Eventually nine were freed when the Saudi authorities determined there was no evidence that they had done anything wrong.

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