Court Upholds Alien Monitoring Program

In a decision released today, a federal appeals court said that the post-911 "Special Call-In Registration Program" for non-immigrant aliens was lawful. The now-suspended program (see DHS fact sheet) required males over age 16 from 24 majority Muslim countries, plus North Korea, who had not qualified for permanent residence, to appear before immigration authorities for registration, fingerprinting, and to submit documents to prove they were here legally. Four individuals who Immigration Judges and the Bureau of Immigration Appeals had deemed deportable (i.e., they were determined to be illegal aliens) challenged the program on constitutional, statutory, and procedural grounds. In a 44-page decision in Rajah et al. v. Mukasey, the Manhattan-based U.S. Court of Appeals for the Second Circuit rejected their claims. "The September 11 attacks were facilitated by violations of immigration laws by aliens from predominantly Muslim nations. The Program was clearly tailored to those facts," the court wrote. One of the men will get a new hearing on his deportation order, however.

Will Hamdan Be Cut Loose?

Salim Hamdan, otherwise known as Guantanamo Bay detainee #149, became the first war-crimes defendant tried by the a U.S. military commission since World War II. About a month ago, the military tribunal convicted him of providing material support to terrorism, but acquitted him on more serious charges of conspiracy to commit terrorism. His sentence was 5-1/2 years in prison (prosecutors sought 30 years to life), and with time served, he will become eligible for release in early January 2009.

The six-member military jury found the evidence did not support prosecution claims that Hamdan, who was Osama bin Laden's driver, was a hard-core terrorist rather than a low-level functionary in al Qaeda's motor pool. Hamdan was also the plaintiff in the 2006 Hamdan v. Rumsfeld case in which the Supreme Court declared that the president's military tribunal's were unlawful in that they violated the Uniform Code of Military Justice and the Geneva Convention. In the fall of 2006, Congress passed the Military Commissions Act which crafted new rules for such tribunals. There has been no shortage of legal wrangling over the treatment and status of enemy combatants, most recently in the form of the Boumediene v. Bush case, decided June 12, 2008, where the Supreme Court ruled in a 5-4 decision that constitutionally guaranteed right of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory. In other words, Gitmo detainees can file habeaus corpus petitions in civilian court to challenge their detention.

Jonathan Mahler, author of a book about the Hamdan case, writes that "It remains unclear whether he was a dedicated lieutenant of bin Laden's-'a body man for bin Laden,' as one of the government lawyers once described him to me--or, as his defense lawyers claim, little more than a lowly foot soldier."

But numerous news outlets have reported that Hamdan, a Yemini national, won't be going home anytime soon. According to the Wall Street Journal ...

The Bush administration maintains it can hold prisoners classified as unlawful enemy combatants, such as Mr. Hamdan, indefinitely. Under this policy, Mr. Hamdan won't necessarily be released when his sentence ends. Rather, the government may decide to continue imprisoning him on grounds that he remains a threat.