Thursday, December 14, 2006

The "Cuba solution" works

Howard's defense of the "Nauru solution" to sequestering so-called "boat people" from the jurisdiction of Australian courts got a vote of support by analogy to a court decision in the US regarding its own "Cuba solution".

Federal judge invokes Military Commissions Act to reject Gitmo habeas petition by Bernard Hibbitts
Agreeing with a position [JURIST report] on pending habeas petitions taken earlier this fall by the US Department of Justice, US District Judge James Robertson wrote in the first ruling to construe the MCA:
Hamdan's lengthy detention beyond American borders but within the jurisdictional authority of the United States is historically unique. Nevertheless, as the government argues in its reply brief, his connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus. Petitioner has never entered the United States and accordingly does not enjoy the “implied protection” that accompanies presence on American soil. Guantanamo Bay, although under the control of the United States military, remains under “the ultimate sovereignty of the Republic of Cuba.” Presence within the exclusive jurisdiction and control of the United States was enough for the Court to conclude in Rasul that the broad scope of the habeas statute covered Guantanamo Bay detainees, but the detention facility lies outside the sovereign realm, and only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ...

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 unconstitutional, 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.
In the context of his ruling Robertson left unaddressed Hamdan's general arguments that the Military Commissions Act is unconstitutional "because it does not provide an adequate substitute for habeas review, because it violates the principle of separation of powers by instructing the courts to ignore the Supreme Court’s ruling that the Geneva Conventions afford judicially enforceable protections to petitioner Hamdan, because it is an unlawful Bill of Attainder, and because it violates Equal Protection."

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