"Surely the president has the right to kill them," responds Scalia. "Is it conceivable that he has the right to kill them but not to detain them?" (Listen here to this exchange.)
Kennedy contends that subsumed within that declaration of war is authorization for the president to "use his judgment." "It was not a list of things he can do."
"If that means he can impose executive indefinite detention, he can lock people up all over the country, for as long as they might live," replies Dunham. Justice John Paul Stevens asks whether Hamdi questions any of the facts in the so-called "Mobbs Declaration"—that's the bare two-page filing by the adviser to the undersecretary of defense policy, who wasn't in Afghanistan, asserting that the government needs to detain Hamdi because he's a bad guy.
Dunham replies that he was only recently allowed to speak to his client for the first time and that the government claims Hamdi's communications are classified, so he can't tell the court anything beyond the fact that there is "substantial dispute" between Mobbs' view of the facts and Hamdi's.
Deputy Solicitor General Paul Clement represents the president today, and he points out right away that one of the reasons the government is authorized to hold Hamdi is to keep him from "rejoining the battlefield" while we still have 10,000 U.S. troops in Afghanistan.
Ginsburg asks whether the government has any justification for trying certain defendants (John Walker Lindh, Zacarias Moussaoui, James Ujaama) and locking up others. Clement replies that those terrorists had "no intelligence value," so it was fine to put them into the judicial system. (The notion that the government will learn more from interrogating Hamdi, a Taliban foot soldier, than Moussaoui, a man who ate ice cream with ranking al-Qaida members, is so preposterous that it cannot just be left on this page to die.)
Kennedy wonders if there's any literature on how long you can interrogate a guy before it stops being fruitful. And Souter asks what the court should do with Section 4001, the one that prohibits locking up Americans without congressional authorization. Clement says Congress did authorize this after Sept. 11, and Souter wonders whether that authorization, like the Wrigley's gum, just lasts an extra, extra, extra long time. Souter seems to want the court to order Congress to refine or supplement the original authorization.
Breyer points out that the authorization contains the words "necessary and appropriate," which, like the Constitution and the Magna Carta, serve to limit the president's claim that he can do absolutely anything he wants whenever he wants. (Listen
Clement adds that Hamdi may not have had a full military proceeding, but he was subject to two thorough military screenings, one on the battlefield and another in Guantanamo, which would have screened him out were his claims of innocence true. He adds (I swear), "The interrogation process also provides an opportunity for him to say this has all been a mistake." When Ginsburg asks, "Doesn't he have a right to tell some tribunal, in his own words ..." Clement concedes he "does have a right to say, in his own words. ..." And Souter, drier than a dirty martini, asks: "When? During interrogation?"
O'Connor speaks, it seems, for much of the court when she points out that this "war" we are in may last forever. "We've never had a situation where this war could last for 25 years of 50 years." And Stevens asks whether the president's power to indefinitely detain includes the power to torture. Clement observes first that there are international conventions prohibiting torture (there are also international conventions prohibiting what we're doing in Guantanamo, but we just say those don't apply) and, helpfully, that torture results in unreliable information. (Presumably once we master really effective torture, the president can order that, too.)
Souter suggests he's just not very comfortable with the government's main assurance: "Don't worry about the timing question. We'll tell you when the war is over." And Frank Dunham offers a fiery rebuttal in which he claims Clement is a "worthy advocate who is able to make the unreasonable sound reasonable." He adds that the government's claim that we should trust them is exactly why the Great Writ exists: because we don't trust them. The passion seems to startle the justices, who remain silent throughout. Dunham surely knows they don't generally take to all this emotionalism. But he's not arguing to the court anyhow. This part is for you. (Listen