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December 14, 2006
Judge Upholds Detainee Law

In an important victory for the Bush administration, a Clinton appointee to the federal bench upheld the new detainee law that bars Guantanamo prisoners from using American civil courts to challenge their detention. The same judge, James Robertson, first ruled against the Bush administration in 2004, necessitating the new law Congress passed this year and upheld in this latest decision:

A federal judge dismissed yesterday a challenge from Osama bin Laden's driver over his more than four years of detention at the Guantanamo Bay military prison, saying a new anti-terrorism law approved by Congress this fall removes the lower court's jurisdiction in the matter.

U.S. District Judge James Robertson is the first to rule on the controversial Military Commissions Act (MCA), which authorizes military trials of alleged enemy combatants and removes their right to try to bring their cases before federal judges.

Robertson dismissed Salim Ahmed Hamdan's petition because he said Congress clearly intended to keep such cases out of the federal courts. And he held that, as a foreigner with no voluntary ties to the United States, Hamdan has no claim to a constitutional right to habeas corpus.

Robertson himself created the need for the MCA when he ruled two years ago that Hamdan should have access to the American civil legal system, as Congress had not explicitly granted the executive with powers to handle detentions of unlawful combatants during the war on terror. The Bush administration fought that decision all the way to the Supreme Court, arguing that a nation at war had no obligation to open its civil court system to what used to be considered spies, saboteurs, and terrorists. The Supreme Court disagreed and threw the issue back to Congress.

Robertson has given the first verdict on Congress' solution, but it won't be the last word. Hamdan and his allies will once again challenge the ruling all the way back to the Supreme Court, which will have a different composition than in its last look at Osama bin Laden's driver. John Roberts recused himself from the last case because of his involvement as an appelate jurist in the original case. That no longer applies, as this is an entirely different challenge. Not only that, but the Court will have to rely on its earlier ruling, which told Bush to get the authority from Congress -- and he did.

However, the White House had better hope it gets to the Supreme Court soon. Patrick Leahy has already indicated that he wants to modify the MCA, apparently to restore habeas corpus to Hamdan and other Guantanamo detainees. Robertson questioned Congress' solution in his opinion as well, but made clear that Hamdan has no right to habeas corpus in the terms of the law or the Constitution. Leahy might try to explicitly grant habeas corpus in legislation, but the rest of the Democrats won't be stupid enough to follow suit. No one will elect them in 2008 if they spend the next two years granting rights to captured terrorists. Leahy can do plenty to muddy the waters enough for more trouble at the Supreme Court, though, if he succeeds in modifying the MCA.

The folks at Justice spent the day celebrating their victory today, but they'd better enjoy it while they can.

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Posted by Ed Morrissey at December 14, 2006 5:13 AM

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