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Judge Rejects Detention Challenge of Bin Laden's Driver

By Robert Barnes
Washington Post Staff Writer
Thursday, December 14, 2006

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.

The question of detainee rights prompted a Supreme Court ruling against the Bush administration's policies earlier this year, and it would not be surprising to see the administration's remedy -- the quickly produced MCA, passed by Congress in late September -- reviewed there as well.

"The issues in these cases won't be finally resolved until the Supreme Court resolves them," said David Remes, who represents another group of Guantanamo detainees challenging the law before the U.S. Court of Appeals for the District of Columbia Circuit.

Nevertheless, the Justice Department celebrated the dismissal of Hamdan's case by Robertson, a civil rights advocate in private practice who was appointed to the bench by President Bill Clinton. He was also the first judge to invalidate the Bush plan for war tribunals when he first considered Hamdan's case in 2004.

"We are pleased that Judge Robertson agreed that the Military Commissions Act removes federal court jurisdiction over this and similar cases, and that the Military Commissions Act is constitutional," said Justice Department spokesman Brian Roehrkasse.

"The Constitution does not provide alien enemy combatants detained at Guantanamo Bay with the constitutional right to file a petition for habeas corpus in our civilian courts, and thus Congress may regulate those combatants' access to the courts," he said.

Beyond the legal wrangling, there is political pressure as well. Sen. Patrick J. Leahy (D-Vt.), the incoming chairman of the Senate Judiciary Committee, said in a speech yesterday before Robertson's decision that the MCA "needlessly undercut our freedoms and values" and that his committee will consider legislation to modify it.

He and other senators had questioned the constitutionality of suspending habeas corpus rights, one of the core principles of English and American law, which require the government to show a legal basis for detaining a person.

The Supreme Court twice, in 2004 and 2006, ruled against the Bush administration's procedures for detaining and trying alleged enemy combatants, but four justices said the president could seek from Congress the authority they said he lacked.

Robertson said that because it was clear he had been stripped of jurisdiction over Hamdan's habeas petition, he was not making a judgment on the constitutionality of the MCA. And he questioned at least part of the legislation.

He wrote that Congress could suspend the writ of habeas corpus only during a time of rebellion or invasion and that "neither . . . [was] occurring at the time the MCA was enacted."

But that does not help Hamdan, he wrote.

"Hamdan's lengthy detention beyond American borders but within the jurisdictional authority of the United States is historically unique," Robertson wrote. "Nevertheless . . . his connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus."

Staff writer Carol D. Leonnig contributed to this report.

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