UPDATE 2:15 p.m.  The judge’s refusal to delay the Hamdan trial starting Monday will not be challenged in a higher court.  Georgetown law professor Neal Katyal, one of the defense lawyers, said: “We have decided not to appeal Judge Robertson’s decision.”  If the detainee ultimately is convicted, he will have the option then to appeal.

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Saying that “the eyes of the world are on Guantanamo Bay,” a federal judge in Washington suggested Friday that the first war crimes trial opening there on Monday will have to deal with issues of “particular sensitivity.”  U.S. District Judge James Robertson commented: “Justice must be done there, and must be seen to be done there, fairly and impartially.”

But, the judge concluded, he would not intrude to postpone the start of the trial.  Neither would he rule, he said, on a host of constitutional issues raised before him in Hamdan v. Gates (04-1519).  Judges like himself, he added, “do not have a monopoly on justice or on constitutional learning.”

The judge at midday Friday issued an 18-page opinion explaining his oral denial Thursday of the plea by Salim Ahmed Hamdan to delay his trial before a military commission, formally opening in three days as the first such trial under a 2006 law. The opinion can be viewed here.

While the substance of Judge Robertson’s “memorandum order” closely tracked his oral announcement a day before, at several points he impliedly questioned some aspects of the trial process set up by Congress under the Military Commissions Act of 2006.

The judge commented, for example, that the MCA made “a startling” departure “from standards that would be applied in either U.S. criminal trials or [military] courts-martial'” — that is, “evidence obtained by ‘coercion’ may be used against the defendant so long as the military judge decides that its admission is in the interest of justice and that it has ‘sufficient’ probative value.”  The judge noted that the Supreme Court in 1940, in Chambers v. Florida, had overturned a conviction and excluded evidence “obtained through five days of coercive interrogation.”

The judge, at the same time, seemed impressed by what he called “significant improvements” in the war crimes trial process under the 2006 law, compared to the process that the judge himself had struck down in 2004 in an earlier case involving Hamdan; that earlier process had been set up solely under Presidential order.  (The Supreme Court in 2006 nullified that earlier system, mostly agreeing with Judge Robertson.)

The judge indicated again, as he had Thursday, that the fact that the two other branches of government had combined to create the new system was a key factor in his ruling.  “Where both Congress and the President have expressly decided when Article III review is to occur, the courts should be wary of disturbing their judgment.”

In discussing improvements made in the new system, Judge Robertson said one of “the most substantial” was creation of a new three-layer system of court review of any convictions that resulted. In the earlier system, he noted, final power to review any conviction rested only with the President or Defense Secretary.

In the MCA, by contrast, appeals are available to a military appeals court (the Court of Military Commission Review), then to two civilian courts — the D.C. Circuit Court and the Supreme Court (though appeals to the Supreme Court would be discretionary with that Court).

The judge also said that “a real judge” will preside over the Hamdan trial; under the law that will be a military judge, drawn from the ranks of legally trained military officers.

The trial judge, Robertson added, “will have difficult decisions to make, as judges do in nearly all trials.  The questions of whether Hamdan is being tried ex post facto for new offenses, whether and for what purposes coerced testimony will be received in evidence, and whether and for what purpose hearsay evidence will be received, are of particular sensitivity.”

But, the opinion added, if that judge “gets it wrong, his error may be corrected by the CMCR [the special military appeals court for war crimes cases]. If the CMCR gets it wrong, it may be corrected by the D.C. Circuit.  And if the D.C. Circuit gets it wrong, the Supreme Court may grant a writ of certiorari.”

The judge did not discuss his own authority even to consider the plea to delay Hamdan’s military commission trial.  The Justice Department had contended that the MCA had stripped federal District judges of any authority to rule on challenges to such trials. By issuing his order, the judge appeared at least to have assumed that he was exercising valid judicial authority.

The judge, on another jurisdictional point — the authority of the military commission to go forward, ruled that Hamdan’s challenge to that authority was not, at least at this point, a “substantial” one.  The opinion said: “I find no ‘substantial argument’ about [the commission’s] jurisdiction in this case.”  In any event, the judge went on, jurisdictional issues can be tested in an appeal if Hamdan is convicted.

He rejected another key point in Hamdan’s challenge to the start of the trial: the claim that the Supreme Court’s June 12 ruling in Boumediene v. Bush (06-1195) had completely undercut the authority of the commission to proceed.  In Boumediene, the Supreme Court ruled that detainees at Guantanamo Bay have a constitutional right to test their detention in a habeas case, and found that the alternative ways to raise that challenge were not adequate substitutes.

Judge Robertson said that, in contrast to the detainees involved in the Boumediene case, Hamdan had has two reviews of his status — both within the military.  He will also “have a fully adversarial trial” giving him a chance to test the basis of his detention, the judge said.

Robertson also appeared to have accepted the argument made by the Justice Department that Boumediene only involved a challenge to detention, as such, and Hamdan was trying to rely upon habeas to go further.  The judge said Hamdan’s challenge to the military commission was “an issue” removed from the underlying question of detention, the “historical core” of habeas.

Among the constitutional issues on which the judge declined to rule, saying he need not do so at this point, is the question of whether the appeal rights Hamdan would have after being convicted were adequate.  It is not clear, the judge noted, that Hamdan would be able to raise a claim of innocence based on new evidence in that appeal process.  But, as of now, the judge said, the constitutionality of that possibility “is an entirely speculative question.”

Robertson also declined to rule on whether Congress, in attempting to block District judges from any role in hearing challenges to the military commission process, had unconstitutionally suspended detainees’ habeas rights.

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