Federal judge defends destruction of Constitution…


Richard Moore

...while preserving a fig leaf.

Original source URL:

Thursday, December 14, 2006 - 12:00 AM

Federal judge issues split decision on new Military Commissions Act

By David G. Savage
Los Angeles Times

WASHINGTON ‹ In the first legal decision on a federal law that denies access to 
U.S. courts to detainees in the war on terrorism, a federal judge ruled 
Wednesday that foreign prisoners held at Guantánamo Bay, Cuba, could not sue for

But, in a split decision, U.S. District Judge James Robertson also ruled that 
the law's denial of that right to the more than 12 million legal immigrants 
living in the United States was unconstitutional.

The first part of the ruling affirmed what Congress intended when it passed the 
Military Commissions Act in October. The decision came in the case of Salim 
Hamdan, the onetime driver to Osama bin Laden, who won what appeared to be a 
landmark victory in the Supreme Court in June.

Taking up Hamdan's lawsuit, the high court's justices said President Bush had 
overstepped his power when he created a system of military tribunals for 
foreign-born alleged terrorists.

In response, Congress passed a law authorizing military tribunals. In addition, 
it moved to deny access to the courts to "aliens" accused by the president of 
being terrorists or "unlawful combatants."

Critics in the Senate said the provision was written so broadly that it took 
away legal immigrants' right of habeas corpus. This right allows people who are 
arrested and imprisoned to go before a judge and plead for freedom.

In Wednesday's ruling, Robertson said lawmakers had the legal power to close the
courts to the detainees at Guantánamo Bay.

"Congress unquestionably has the power to establish and define the jurisdiction 
of the lower federal courts," he wrote in a 22-page opinion. Until some recent 
decisions, he said, it had always been understood that "an alien captured abroad
and detained outside the United States" did not have a right to sue in a federal

Hamdan was captured in Afghanistan, and Guantánamo Bay is, technically, 
sovereign territory of Cuba, Robertson noted.

However, the Constitution protects the right of habeas corpus for people living 
in the United States, the judge said.

Meanwhile, the incoming chairman of the Senate Judiciary Committee said 
Wednesday he would subpoena Bush administration officials if they refuse 
requests for documents and testimony, including two long-sought memos detailing 
its detention and treatment of terror suspects overseas.

One is a presidential order signed by Bush authorizing the Central Intelligence 
Agency to set up secret prisons outside the United States to house terrorism 
suspects. The other is a 2002 Justice Department memorandum outlining 
"aggressive interrogation techniques" that could be used against terror 

"I expect to get the answers. If I don't ... then I really think we should 
subpoena," said Sen. Patrick Leahy, D-Vt.

Copyright © 2006 The Seattle Times Company

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