Hamdan’s case dismissed, but new Act may be partly invalid

U.S. District Judge James Robertson, in a mixed ruling on constitutional and statutory law, ruled on Wednesday that Congress had not validly suspended the historic “writ of habeas corpus” in the new Military Commissions Act of 2006. Robertson, however, found that Congress had legally ordered the dismissal of all pending habeas cases filed in U.S. federal courts by foreign nationals being held by the U.S. military. Thus, the judge dismissed the case of Salim Ahmed Hamdan, who now could face war crimes charges before a new “military commission.” Finally, Robertson ruled that Hamdan, as an alien with no voluntary ties to the U.S., had no constitutional right to challenge his detentioin in federal court.

The only individuals who could benefit from Robertson’s ruling on the question of suspending habeas would be those who were taken captive during the war on terrorism and were foreign nationals who — unlike Hamdan — had established voluntarily “a significant relationship” to the U.S., by living here or by otherwise establishing such a relationship. This latter aspect, if followed by other courts, could be of benefit in the case pending in the Fourth Circuit Court involving a permanent resident alien who was captured in his home in Peoria, Ill., and is still being held captive by the U.S. military. (See this post from earlier Wednesday on the Al-Marri case.) The new Act does not withdraw the right of habeas for U.S. citizens, but only for foreign nationals captured during the war on terrorism; it does seek to withdraw it for an alien rounded up as a terrorist suspect, no matter where captured.

Robertson’s 22-page opinion explaining his ruling can be found here. His one-page order of dismissal can be found here. The case is Hamdan v. Rumsfeld (docket 04-1519.)

This was the first decision by any federal court on the scope, meaning and validity of the new Military Commissions Act — a law enacted in October in reaction to the Supreme Court’s decision — in Hamdan’s own case (Hamdan v. Rumsfeld, decided last June) — striking down President Bush’s first plan for war crimes tribunals to be used for foreign nationals held at Guatanamo Bay, Cuba. Congress replaced that system with a new one, not yet in being; Hamdan is likely to be charged anew when that system is set up.

Because there probably would be few individuals who could benefit from the part of the ruling finding that MCA is unconstitutional, if it actually was found to suspend the writ, Robertson’s decision amounts to a major victory for the Bush Administration and for the Justice Department’s advocacy in defense of a sweeping view of the Act’s scope. It could be particularly gratifying to the Administration, since it was Judge Robertson himself whose 2004 decision in the earlier stages of Hamdan’s case found the Bush order creating war crimes tribunals to be invalid.

Robertson did not rule on an array of constitutional issues that Hamdan’s lawyers had raised when the case returned to District Court from the Supreme Court. Having found that Congress had withdrawn his jurisdiction to continue to review Hamdan’s habeas case, the judge said he would express no view on whether Congress had provided an adequate substitute for habeas review, whether Congress had acted unconstitutionally in barring judicial enforcement of the Geneva Conventions on treatments of prisoners, whether the new Act is an invalid form of legislative punishment (a “bill of attainder”), or whether it violates constitutional guarantees of legal equality.

Hamdan’s lawyers have the option of appealing the dismissal to the D.C. Circuit Court, or to seek direct review in the Supreme Court. Similarly, the government could pursue one or the other of those paths if it wishes to challenge Robertson’s holding on the suspension issue; since it prevailed on that issue so far as Hamdan is concerned, a government appeal would seem unlikely.

Here is the conclusion of Robertson’s decision: “Congress’s removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutiional, in the absence of rebellion or invasion), but Hamdan’s statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus. Hamdan’s habeas petition must accordingly be dismissed for want of subject matter jurisdiction.”

Probably the most fascinating part of the ruling was the discussion of the suspension question. Robertson reached that issue because Hamdan’s lawyers had contended that Congress did not intend to wipe out existing habeas cases filed by foreign nationals but, if it did, then that was an unconstitutional suspension of the writ. Having first found that Congress explicitly intended to strip courts of power to hear all pending habeas cases (as well as future cases), the judge then moved on to deal with the suspension claim.

He concluded that “the Great Writ has survived the Military Commissions Act. If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional.” Congress has power, under the Constitution’s Suspension Clause, only to suspend the habeas writ “when in cases of rebellion or invasion the public safety may require it.”

The protection of the Suspension Clause, the judge found, “is absolute in the absence of ‘invasion; or ‘rebellion.’ Neither reellion nor invasion was occuring at the time the MCA was enacted. Indeed, Congress itself may not have thought that it was ‘suspending’ the writ with the enactment of the MCA, since it made no findings of the predicate conditions…” — that is, rebellion or invasion.