Analysis by Lyle Denniston
UPDATE 2:15 p.m. The judge’s refusal to delay the Hamdan trial starting Monday will not be challenged in a higher court. Georgetown law professor Neal Katyal, one of the defense lawyers, said: “We have decided not to appeal Judge Robertson’s decision.” If the detainee ultimately is convicted, he will have the option then to appeal.
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While the substance of Judge Robertson’s “memorandum order” closely tracked his oral announcement a day before, at several points he impliedly questioned some aspects of the trial process set up by Congress under the Military Commissions Act of 2006.
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The judge, at the same time, seemed impressed by what he called “significant improvements” in the war crimes trial process under the 2006 law, compared to the process that the judge himself had struck down in 2004 in an earlier case involving Hamdan; that earlier process had been set up solely under Presidential order. (The Supreme Court in 2006 nullified that earlier system, mostly agreeing with Judge Robertson.)
The judge indicated again, as he had Thursday, that the fact that the two other branches of government had combined to create the new system was a key factor in his ruling. “Where both Congress and the President have expressly decided when Article III review is to occur, the courts should be wary of disturbing their judgment.”
No Hamdan appeal,
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