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The Nation

Guantanamo inmates may not appeal, judge rules

Congress' tribunal law, however, cannot deny that right to legal immigrants in the U.S., the federal jurist says.

December 14, 2006|David G. Savage | Times Staff Writer

WASHINGTON — In the first legal decision on a new federal law that denied access to U.S. courts to detainees in the war on terrorism, a federal judge ruled Wednesday that foreign prisoners held at Guantanamo Bay, Cuba, could not sue for their freedom.

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. And appropriately enough, the decision came in the case of Salim Ahmed Hamdan, the onetime driver to Al Qaeda leader Osama bin Laden who had won what appeared to be a landmark victory in the Supreme Court in June.

Taking up Hamdan's suit, 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" who are accused by the president of being terrorists or "unlawful combatants."

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

In Wednesday's ruling, Robertson said lawmakers had the legal power to close U.S. courts to detainees at Guantanamo 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 court.

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

However, the Constitution protects the right of habeas corpus for anyone living in the United States, the judge said. The Constitution says this right may be "suspended" during times of "rebellion or invasion."

"Neither rebellion nor invasion was occurring at the time the MCA was enacted," Robertson said, and Congress did not claim otherwise.

"Thus, the Great Writ has survived the Military Commissions Act," and any effort to block a person from going to court in this country "must be unconstitutional," the judge concluded.

The ruling clears the way for the Bush administration to go forward with a military trial of Hamdan. It is also likely to be the first of many decisions interpreting the new law.

Sens. Patrick J. Leahy (D-Vt.) and Arlen Specter (R-Pa.) also have announced they will seek to restore habeas rights for legal immigrants when the new Congress opens in January.

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david.savage@latimes.com

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