Alito asks whether the conspiracy charge can't simply be amended. To which Katyal responds, with some frustration, that the "government has had four years to get their charges together against Hamdan."
Katyal argues that the Uniform Code of Military Justice sets out the bare baseline rules for military commissions. But Scalia counters that there is no point in creating military commissions if they have to adhere to the same standards as the UCMJ.
Solicitor General Paul Clement has 45 minutes to represent the Bush administration, and here is where the smoke and mirrors kick in. He cites the executive's longstanding authority to try enemies by military tribunal. When Justice John Paul Stevens asks for the source of the laws that such tribunals would enforce, Clement replies that the source is the "laws of war." When Stevens asks whether conspiracy is encompassed within the laws of war, Clement says that the president views conspiracy as within the laws of war.
Neat trick, no?
Souter takes a slightly different tack: If you accept that the military commissions apply the laws of war, don't you have to accept the Geneva Conventions? he asks. Clement responds that the commissions can "adjudicate that the Geneva Conventions don't apply."
"You can't have it both ways, " Souter retorts. The government can't say the president is operating under the laws of war, as recognized by Congress, and then for purposes of defining those laws, say the Geneva Conventions don't apply.
Sure it can. Clement replies that if a detainee has such a claim, he should bring it before the military courts. Even Kennedy seems alarmed now. He confesses that he's troubled by the notion of bringing challenges about the structure of the tribunal to the tribunal itself. "If a group is going to try some people, do you first have the trial and then challenge the legitimacy of the tribunal?" he asks incredulously.
Clement objects to his word choice. "This isn't just some group of people," he says. This is the president invoking his authority to try terrorists.
Breyer goes back to the DTA and whether it stripped the court of jurisdiction to rule on Hamdan's claims. He asks how the court can avoid "the most terribly difficult question of whether Congress can constitutionally deprive this court of jurisdiction in habeas cases."
And Stevens serves up another can't-have-it-both-ways query: When Congress takes away the courts' habeas corpus jurisdiction, "Do you say it's a permissible suspension of the writ or that it's not a suspension of the writ?" he asks.
"Both," replies Clement.