Gibbons does make his point that the United States exercises de facto control over Guantanamo: "If one of the detainees here assaulted another detainee in Guantanamo, there's no question they'd be prosecuted under American law," he notes. It's sure as heck not Cuban law controlling there, he suggests, adding: "A stamp with Fidel Castro's picture on it couldn't get a letter off the base." Before he closes, Gibbons reminds the justices of the extreme implications of the administration's position, saying the executive branch has created in Guantanamo "a no-law zone, not accountable to any judiciary, anywhere."
Solicitor General Ted Olson then presents the president's side of the case. Nothing in his performance betrays the fact that his wife died on one of those planes, at the hands of terrorists just like the ones we may be holding at Guantanamo. Olson opens with a reminder that the United States is at war, that there are 10,000 American troops in Afghanistan today, and that Congress almost unanimously authorized the president to use "all necessary and appropriate force" against those who attacked us.
Stevens, who proves himself spryer than a young Christina Aguilera today, asks whether Olson would take a different position if the war were over. Olson says there would still be no jurisdiction. "So the war is irrelevant," says Stevens, highlighting the fact that the president's commander-in-chief powers seemingly have no "use by" date.
Justice Sandra Day O'Connor, whom everyone watches like a hawk today, again, asks whether there would be a different result if the detainees were Americans. Olson says he would acknowledge U.S. courts' jurisdiction over U.S. citizens. Souter goes back to whether Eisentrager simply decided that U.S. courts had no jurisdiction or whether it looked at the merits of the German prisoners' claims. Olson proceeds to read great swaths of the opinion since it remains his best argument.
O'Connor suggests briefly that she might distinguish Eisentrager. She notes that it seemed to reach the merits of the case, and, "These people had a trial."
Shortly thereafter, Olson starts to retreat from his claim that American detainees at Guantanamo could claim that U.S. courts have jurisdiction. Scalia helps Olson out by reminding him that citizens have constitutional rights that would allow jurisdiction. (All of this is throat-clearing for next week's Padilla and Hamdi cases, in which U.S. citizens are detained without charges).
Kennedy is unimpressed. "This is a prisoner, detained by the United States," he says, noting that this sounds like what's contemplated under the federal habeas statute. Justice Breyer thinks the court can find a middle ground between the two extremes of perpetual detention without oversight and sweeping rights for every enemy soldier. Suggesting that the Bush lock-'em-up-forever rule does have the beauty of clarity, it leaves "the executive free to do whatever they want" without a check and gets in the way of 200 years of history. Appreciating that the executive branch does not want "undue court interference," he asks what would be wrong with the court "helping you shape" the substantive rights of prisoners.
Olson says there is a check on the executive. Congress had 54 years to change the habeas statute after Eisentrager and chose not to (Congress, the great worrier over the rights of Nazi spies …). Scalia jumps onto the Congress-for-Supreme Court bandwagon, adding that if the people think the law is unfair, they can "change it with a stroke of a pen."
Breyer confesses to being worried about leaving a loophole for a "large category of unchecked and uncheckable detentions." He offers to tailor substantive law for these cases "to take care of the problems worrying you." But Scalia has had enough. "Do we even know what problems are worrying you?" he asks. Noting that the court has only lawyers before it, no witnesses, no evidence, he makes it clear that courts don't exist to legislate the rights of enemy combatants.
But in a few moments, it's Souter who's had it, now with the fiction that Cuba exercises control over Guantanamo. "We even protect the Cuban iguana. In bringing people from Afghanistan to Guantanamo, we are doing in functional terms exactly what we would do if we brought them to the District of Columbia."
Yes! It's true. One can't lock people in the closet under the stairs and claim they're not your stairs.