December 13, 2006

Clinton Judge Upholds Bush Detainee Policy

In a surprise (to me, at least), President Bush's revamped Military Commissions Act -- passed by Congress and signed by the president, as Justice Kennedy virtually demanded -- has just passed its first hurdle: it was upheld in its first court hearing... by a Clinton-appointed federal district judge! Poor, old Hamdan will likely have to stay in the pokey for the duration.

In fact, Judge James Robertson was not only appointed by President Bill Clinton, not only a former civil-rights activist, he was even confirmed in 1994, while the Democrats still controlled the Senate. And Robertson was the judge who originally ruled in Hamdan's favor, and whose ruling was somewhat upheld by the Supreme Court. But today, he bowed to the obvious:

A federal judge upheld the Bush administration's new terrorism law Wednesday, agreeing that Guantanamo Bay detainees do not have the right to challenge their imprisonment in U.S. courts.

The ruling by U.S. District Judge James Robertson is the first to address the new Military Commissions Act and is a legal victory for the Bush administration at a time when it has been fending off criticism of the law from Democrats and libertarians.

Robertson rejected a legal challenge by Salim Ahmed Hamdan, a former driver for Osama bin Laden whose case prompted the Supreme Court to strike down the Bush administration's policy on detainees last year.

That was the infamous Hamdan case, where four of the nine justices of the Supreme Court -- John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter -- opined that even enemy combatants had to be granted full Geneva-Convention rights -- including the right to refuse to be interrogated.

Fortunately, the fifth justice (Anthony Kennedy) to join the decision that Hamdan's detention was not constitutional without Congressional legislation refused to sign aboard the expanded version of Geneva pushed by the Hamdan Four. He agreed only that Bush could not detain people simply on his own say-so (I disagree, but I don't own a black robe).

Justice Kennedy more or less said that if Congress passed Bush's military commissions into law, Kennedy would vote to uphold it. With that signal, Judge James Robertson upheld the current detention regime of Hamdan:

Hamdan's case was sent back before Robertson, a nominee of President Clinton who was a prominent civil rights advocate in private practice.

Though Robertson originally sided with Hamdan, he said that he no longer had jurisdiction to hear Hamdan's case because Congress clearly intended to keep such disputes out of federal courts. He said foreigners being held in overseas military prisons do not have the right to challenge their detention, a right people inside the country normally enjoy.

Actually, though, that's not true. According to the Justice Department, detainees can challenge their status before a mliitary commission; and if they don't like the decision, they get one bite at the apple to appeal to the D.C. Circus Court of Appeals... then that's it; their decision is final. This is hardly denying unlawful combatants some fundamental right to endlessly abuse the system and interfere with the president's ability to wage war:

"That is more process than the United States has ever provided to enemy combatants in our past conflicts," Blomquist said.

This won't be the last word: Hamdan will of course appeal to the D.C. circuit. But I'd sure rather my side be in the position of having to defend a win than having to appeal a loss!

And there are two other cases currently being considered by the D.C. circuit where I think we are in the position of having to appeal losses; but they were evidently decided either before the MCA passed or at least without considering it... so if this decision is a harbinger, it's a sign of good decisions to come.

Hatched by Dafydd on this day, December 13, 2006, at the time of 4:19 PM

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» Hamden can be held from Dawnsblood
In a victory for sanity, Judge Robertson held that detainees at Gitmo have no right to challenge it in US courts.In a surprise (to me, at least), President Bush's revamped Military Commissions Act -- passed by Congress and signed by the president,... [Read More]

Tracked on December 13, 2006 5:47 PM

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You will all recall -- as I'm certain you've memorized every Big Lizards post by now -- and if you haven't, how do you expect to pass? -- that we earlier blogged about the stunning instance of Clinton appointee Judge... [Read More]

Tracked on December 17, 2006 3:36 AM

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