Government moves to bolster habeas position
on Dec 14, 2006 at 6:20 pm
The Justice Department moved swiftly on Thursday to exploit the significant victory it won from a federal judge on Wednesday on Congress’ move to wipe out existing habeas challenges by war on terrorism suspects being held at a U.S. military prison at Guantanamo Bay, Cuba. In a letter to the D.C. Circuit Court, the Department formally notified a three-judge panel there of the ruling by U.S. District Judge James Robertson. (A post on the Robertson ruling can be found here. The post includes a link to the decision.)
Robertson ruled for the government on both the scope of the court-stripping clauses in the new Military Commissions Act of 2006, and on the lack of a constitutional right of habeas for foreign nationals being held at Guantanamo. Those same issues are pending before the Circuit Court in two packets of cases that could be decided imminently. Robertson’s ruling came in the case of Hamdan v. Rumsfeld. The pending cases at the Circuit Court are Al Odah v. U.S. (CA docket 05-5064 and others) and Boumediene v. Bush (05-5062 and another).
The Circuit Court has been weighing those cases for more than 21 months — since March of last year. It has held two hearings, and has called for three rounds of briefs. The panel thus has been expected to rule at any time.
The Justice Department letter of Thursday can be found here. Although the Circuit Court could have taken notice itself of the Robertson ruling, issued in the same courthouse, the government letter made sure of that, and even appended the slip opinion to its letter.
The Departmentt commented that Judge Robertson had “squarely rejected” the detainees’ interpretation of the court-stripping law not to apply to pending habeas cases. It also noted that the judge had accepted the government view that “aliens detained as enemy combatants outside the sovereign territory of the United States have no constituitonal habeas rights protected by the Suspension Clause.”
If the Circuit Court reads the new Act as Robertson did, it has the option of ordering District Courts to dismiss all such cases, or it can convert them into challenges to the decisions of the Pentagon’s “combat status review tribunals” at Guantanamo. Those tribunals have the task of deciding whether to continue a captive’s detention. Under a law passed in late 2005, Congress provided only a limited review, and only before the Circuit Court, on the decisions by the status tribunals. The detainees have argued that this form of judicial review is not an adequate substitute for habeas. Judge Robertson did not rule on that issue, since he found that Congress had taken away his Court’s jurisdiction to reach such questions.
There was a touch of irony in the Justice Department citing Judge Robertson’s new decision as “supplemental authority.” It was Robertson who earlier struck down President Bush’s plan for war crimes “military commissions,” leading ultimately to a Supreme Court ruling last June nullifying those commissions. Congress passed the new Act to supply a legislative basis for the Pentagon to set up new war crimes commissions.
