Military Commissions Can Move Forward, Judge Rules

U.S. District Judge James Robertson denied a request by Salim Hamdan, a former driver for Osama bin Laden, to halt his war crimes trial scheduled for next week. Hamdan’s lawyers had asked Robertson to delay the proceedings so they could test the underlying legal principles of the commissions in federal court.

Robertson, ruling from the bench after a two-hour hearing this morning, said challenges to the lawfulness of the military commissions must be resolved, in the first instance, by the commissions themselves. The judge said he was reluctant to interfere with a system created by Congress with instruction from the Supreme Court.

Robertson’s ruling came hours after a military judge rejected Hamdan’s arguments that the military tribunals violate the Constitution's equal-protection clause because detainees are not afforded the same rights as civilians or as they would be in a traditional military trial. Hamdan's trial — the first of its kind — is slated to begin Monday.

Robertson’s decision is a key victory for the Bush administration in the wake of the Supreme Court’s June decision in Boumediene v. Bush, which held that detainees at Guantánamo Bay have a constitutional right to habeas corpus.

The government argued that the commissions took precedence over the detainees’ newly recognized right to challenge their captivity in U.S. District Court. Today, Justice Department lawyer John O'Quinn pushed that argument further, telling Robertson that detainees charged in the commissions have no access to the district court if a military judge designates them an “unlawful enemy combatant.”

The Military Commissions Act of 2006 allows detainees to appeal the commissions’ verdict to the U.S. Court of Appeals for the D.C. Circuit. At the hearing today, O'Quinn said the right to appeal supplanted habeas relief.

Robertson repeadedly pressed the government to the edges of its argument. At one point, the judge asked O'Quinn to tell him "what part of the Constitution does apply or does not apply" at Guantanamo.

"With respect, Judge Robertson, that question is not properly before this court," O'Quinn said.

"Yes, but I'm asking you."

O'Quinn said he took the Supreme Court's ruling in Boumediene to mean that the applicability of the Constitution to detainees at Guantanamo is context-specific. The opinion made plain that the Suspension Clause applied to detainees, but the applicability of others, like the equal-protection clause, should be determined in the commissions, he said.

Hamdan’s lawyers warned that the ruling would allow the Bush administration to tiptoe around Boumediene. The government could charge detainees in the commissions to escape scrutiny by the federal district court, said Neal Katyal, one of Hamdan’s lawyers and a professor at Georgetown University Law School.

Katyal said the federal district court should lay the legal groundwork for the commissions before they go forward to prevent more delay. He said the D.C. Circuit or the Supreme Court would be more likely to invalidate the verdicts on appeal if the commissions, rather than Article III judges, make the rules.

"So D.C. acquires a new neighborhood," Robertson said dryly. "It's called Guantanamo."

Robertson declined to rule on whether the Military Commissions Act stripped the U.S. District Court of jurisdiction to hear habeas challenges by detainees charged with war crimes, or whether the appeals process was an adequate substitute for habeas corpus. The judge said the issues were “novel and complex” but not ripe for decision in his court.

Roberson also emphasized his ruling was not binding on the other judges of the court, “except as it may be persuasive.”

The Justice Department celebrated the ruling — one of its few victories in the case of Hamdan, whose own victory in the Supreme Court spurred the creation of the military commissions. "The government looks forward to presenting its case against Mr. Hamdan to the commission,” the Department said in a statement. "Under the procedures established by Congress in the Military Commissions Act, Mr. Hamdan will receive greater procedural protections than those ever before provided to defendants in military-commission trials."

Hamdan's lawyers could appeal the Robertson's decision, but it would difficult to get a stay from the D.C. Circuit before the trial begins on Monday.