BLAME CONGRESS. Glenn Greenwald and Lyle Denniston have excellent analysis of the decision of District Court Judge James Robertson to dismiss the habeas corpus claim of Salim Ahmed Hamdan. Under the circumstances, the decision is actually about as good an outcome for opponents of arbitrary detentions as could be expected. Robertson held that Congress has not suspended the writ of habeas corpus for American citizens--it lacks the power to suspend the writ because there is not a n ongoing "rebellion or invasion." Admittedly, it's easier for courts to construe the statute more narrowly when doing so doesn't require ruling against the administration, but this is as least one reason for cautious optimism.

Still, for the most part this decision is depressing; as Denniston notes, it is unlikely that many detainees will be able to take advantage of the inapplicability of the statute to American citizens, even assuming that other courts will construe the statute similarly. The key thing to remember, to quote Glenn, is that the "principal fault here lies with the 109th Congress (and, of course, the administration it so faithfully served), not with Judge Robertson." Robertson's application of the statute was, at least, reasonable; the biggest problem is that Congress has shamefully refused to place significant constraints on the administration's assertions of arbitrary power.

--Scott Lemieux

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