The SG, Ted Olson, has a sonorous voice, but his argument was uninspired. He responded to key questions by noting for the third or fourth time the absence of statutory language and “the line that this Court drew” in an old case. “But why is it a good line?” Justice Souter burst out. I don't think Olson ever conveyed a strong reason to stand back so far in deference to the President. You can say "The United States is at war"--Olson's excellent opening line--but that can't mean: so anything goes. The question is how far back to stand, and you ought to have good reasons for the degree of deference you're asking for.
Justice Scalia actively picked up the slack. (Listen to Nina Totenberg's summary with great clips from the oral argument here.) His argument is all about the lack of judicial capacity to draw lines in this area and the lack of need for a judicial check on the Executive because the political process can respond. That's no help if you're an innocent detainee and the American public is willing to ignore you. But in Scalia's view, the courts do not sit to right all injustices. The fate of some individuals can be left in the hands of the Commander in Chief--which, of course, is inevitably true in war to some extent. Everyone's real question is: to what extent? Scalia is likely to say: if the detainees are not American citizens and are not on American territory, we should leave it to the President to determine how similar or different they are from persons detained on the battlefield, because it will be too hard for the courts to design the necessary legal structure to deal with this area properly:
We have only lawyers before us, we have no witnesses, we have no cross-examination, we have no investigative staff. And we should be the ones, Justice Breyer suggests, to draw up this reticulated system to preserve our military from intervention by the courts?
Breyer took another tack, and ribbed Scalia for saying "reticulated." He asked Olson whether the Court might not help him in a different way, by finding jurisdiction, reaching the merits, and then "shaping" the substantive law so that there is no significant limit on the Executive.
So the Court might find jurisdiction, probably because the United States controls everything in the rented space that is Guantanamo Bay--as Gibbons noted, a letter with a stamp with Fidel Castro's picture on it would not get delivered, and we protect the Cuban iguana. But that will just mean that the federal court on habeas will reach the merits of the claim, and it is likely that very little will be needed to satisfy the courts that no relief is warranted. Deference to the Executive will be accomplished by articulating extremely narrow or nearly nonexistent rights--or no rights at all.
Breyer might be right that the Executive would benefit from this approach. His opponents could no longer bemoan the large area of unchecked power and the neat trick of putting everyone in Guantanamo, but power could remain virtually completely unchecked by courts, just unchecked in a way that makes it difficult to criticize as unchecked. If that's true, maybe those who worry about the detainees ought to reconsider the appeal of Scalia's position. If the courts forthrightly say, we will have nothing to do with these matters, people cannot soothe themselves with the hope (the futile hope) of a judicial check and may still see the need to push the Executive (or Congress) to behave in a just way toward the detainees.
This is of course an old argument, and I cite law types to Felix Frankfurter's opinion in Baker v. Carr and Robert Jackson's opinion in Korematsu.