"You can't say both," chides Stevens. So this is where Clement claims that Congress could have accidentally suspended the writ, the way you might accidentally drop your eyeglasses into a punchbowl. "Wait a minute," replies Souter, and I think he's angrier than I have ever seen him. "The writ is the writ. … You're saying the writ was suspended by inadvertence!"
Later Breyer will add: "You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him." To which Clement's answer is the fail-safe: "This is a war."
And even as it starts to be clear that he is losing Kennedy—who asks whether Hamdan isn't "uniquely vulnerable" and thus entitled to the theoretical protection of the Geneva Conventions—Clement stands firm in his claim that the Guantanamo detainees are different from regular POWs because, well, they are.
At some point, it must begin to insult the collective intelligence of the court, these tautological arguments that end where they begin: The existing laws do not apply because this is a different kind of war. It's a different kind of war because the president says so. The president gets to say so because he is president.
For today at least, it appeared that the Bush administration would not readily marshal five votes for its core legal proposition: that if you just refuse to offer answers, the questions will go away.
TODAY IN SLATE
The Irritating Confidante
John Dickerson on Ben Bradlee’s fascinating relationship with John F. Kennedy.
My Father Invented Social Networking at a Girls’ Reform School in the 1930s
Renée Zellweger’s New Face Is Too Real
Sleater-Kinney Was Once America’s Best Rock Band
Can it be again?
The All The President’s Men Scene That Captured Ben Bradlee
Is It Better to Be a Hero Like Batman?
Or an altruist like Bruce Wayne?
Driving in Circles
The autonomous Google car may never actually happen.