March 28, 2006

The argument in Hamdan.

SCOTUSblog describes today's oral argument in the Hamdan case:
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.

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.
UPDATE: Here's Linda Greenhouse:
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."


Jean723 said...

Basically, the U.S. is under an oligarchy. There is absolutely no check that exists on SCOTUS, short of a Constitutional amendment and even then we have to be careful, because they just redefine the language of the Constitution as they see fit.

Since they don't like the DTA passed by Congress, they'll just ignore it and claim they have jurisdiction anyway!

What a joke this country and its court system is.

37383938393839383938383 said...

I disagree with Greenhouse's description because it is incomplete. Linda Greenhouse describes the fireworks between Justice Souter and General Clement over the need for a Congressional clear statement (or a "magic words" requirement), but leaves off the part where Scalia cleans up Clement's "stumbling" language and Souter is forced to retreat to an alternative theory: interpreting "insurrection" in the Suspension Clause to obtain the same result, i.e., if we find there was no insurrection then it doesn't matter that Congress performed the legislative procedure sufficient to invoke the writ in the absence of magic words. No other member of the court was with Justice Souter on his "defining 9/11 out of existence" theory.

Reggie said...

What an amazing oral argument. I can't believe there are any justices willing to buy Hamdan's argument. If the Supreme Court holds that non-uniformed, foreign combatants captured in a theater of war are entitled to habeas challenges in article III courts, the President would be entirely justified in ignoring and refusing to execute such a blatantly unconstitutional holding. The Supreme Court simply cannot order the President to release captured enemy combatants. If the Commander in Chief role means anything, it must mean deciding who to shoot at and capture.

Think of it: our troops will soon have to be trained in proper techniques for obtaining and preserving evidence on the battlefields in the mountains of Afganistan or the Baghdad slums, so that captured terrorists aren't set free when they bring their habeas challenges.

Even Taney wouldn't have dreamed of this one.

teddy_kgb said...

I would actually prefer that the Bush Admin. prove that these people are even worth holding. Conspiracy is pretty weak.

It seems like the admin is trying to skate the line of lets treat them like prisoners of war, able to be held indefinately until the end of hostilities, not entitled to any relief in the traditional court system but yet receive none of the protections entitled to POW's under Geneva because they are "enemy combatants."

The court should call shenanigans. Oh wait, 9/11 changed everything. My bad.

CatoRenasci said...

Think of it: our troops will soon have to be trained in proper techniques for obtaining and preserving evidence on the battlefields in the mountains of Afganistan or the Baghdad slums, so that captured terrorists aren't set free when they bring their habeas challenges.

It seems to me if Hamdan's position is sustained, then we'll just have to let combat be combat.... and not wonder why we never seem to capture very many illegal combatants, and why those we do find don't survive past their useful interrogation period.

Ann Althouse said...

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.

37383938393839383938383 said...

I think Stevens will try to flip this into a 5-3 by asserting that the charge of conspiracy by itself cannot support an indictment, so the government loses.

anonlawstudent said...

jean723 wrote, There is absolutely no check that exists on SCOTUS, short of a Constitutional amendment

Utter nonsense. There are a slew of checks on the power of SCOTUS. The most obvious is impeachment in the Senate, a proceeding that is not judicially reviewable. There's standing doctrine, and cases and controversies doctrine. Congress could strip the court of a tremendous amount of jurisdiction. Congress could eliminate the lower Federal Courts altogether. Not to mention simple prudential concerns the court has frequently expressed causing it to exercise reserve.

Even if there was a constitutional standoff between SCOTUS and one of the other coordinate branches, SCOTUS has neither the guns nor the money to enforce its interpretation.

If your assertion is that there's a structural imbalance in power, then it's because the other coordinate branches have failed to exercise their checks on the courts appropriately. I garantee, however, that the court is doing a tremendous amount of important policy and lawmaking work that neither the president nor congress are equipped to do or particularly interested in doing.

The nature of the common law is such that courts do make law. If you don't like it, then let's try a system where courts don't bother to give reasons for their holdings; they simply declare a winner, without articulating what the law is that gives rise to that holding. Lets see how much you like it when there's really no accountability.

37383938393839383938383 said...


Congress did seem to be responding to the Court with one of the tools you mention by attempting to strip the Court of jurisdiction in cases that were put into play only because the Court reversed 200 years of tradition in Rasul. And yet the Court seems to be ready to decide it has jurisdiction in Hamdan and proceed to whittle down the DTA. So Hamdan dispoves that Congress can check the Court short of impeachment or refusing to grant it a budget.

Al Maviva said...

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.

IndyJones1967 said...

I caught only a few minutes of the arguments on my commute home, and that was more than enough. I was horrified to discover that the Solicitor General of the United States does not know the plural form of "court martial". It's "courts martial", dear, not "court martials".

IndyJones1967 said...
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