For the most part, the session was subdued and understated, especially given the historic dimensions of the dispute before the Court -- a major test of Executive power in the midst of vigorous presidential responses to a proclaimed "war on terrorism." But there was definitely an emotional high point, and that came when Breyer, then Souter, focused on the law that Congress passed late last year that threatened to scuttle the Hamdan case, and all other pending court cases filed by foreign nationals now being detained at Guantanamo Bay, Cuba. That law, the Detainee Treatment Act, is a court-stripping measure that raises serious questions about whether President Bush's orders dealing with captured foreign detainees will ever be fully tested in court.Much more at the link.
Here's Gina Holland's description of the argument (for AP):
Justice Anthony M. Kennedy questioned Solicitor General Paul Clement about the legal safeguards for the trials. Justice Stephen Breyer also asked what would stop the president from holding the same type of trial in Toledo, Ohio, not just at the military prison in Guantanamo Bay, Cuba.UPDATE: Here's Linda Greenhouse:
Hamdan claims the military commissions established by the Pentagon on Bush's orders are flawed because they violate basic military justice protections.
"This is a military commission that is literally unburdened by the laws, Constitution and treaties of the United States," [Hamdan's lawyer, Neal] Katyal told justices.
Justice Souter interrupted [Solicitor General Paul Clement]. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"
When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"
The solicitor general replied: "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States —"
"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some case and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."
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2 comments:
Don't assume that the habeas access leads directly to a full jury trial! There could be habeas access but only to the point of checking whether the military tribunals are adequate. That could be a fairly deferential review. It might not be that different from nothing at all, yet there would be the appearance of judicial review, the judicial rubber stamp. That's the most likely outcome, I think.
As a vet and now an attorney, I'm pretty disgusted with the legal class and the chattering classes about this. If the court finds that those captured on the battlefield have a habeas right, I think I will start endorsing a 'no prisoners' policy. No, I don't think a "shoot on sight" policy is a good thing but it would be preferable to seeing this debasement of our justice system, which will have much greater long term effects on the country. I can't wait until the court claims jurisdiction over the CIA's activities abroad, or the State Department's negotiation of various agreements. You can argue that the scope of habeas review is limited here, but it's really not; in reaction to the immigration reform act of 1996, in which Congress very clearly limited court jurisdiction over deportee claims to petitions for habeas, the courts responded by styling all manner of oddball claims as habeas claims. There are days when I hate being a member of this class of professionals that vexes the country so.
BTW, Ann, I presume that Justice Ginsburg, using her normal rigorous interpretive methods, reads this complaint as a threat against her personal safety. If any elderly Supreme Court Sergeants-at-Arms show up to quiz you about my comments, please assure them that no harm was meant.
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