One of the most dramatic moments in today's oral argument in Hamdan v. Rumsfeld comes when an uncharacteristically agitated Justice David Souter presses Solicitor General Paul Clement about whether Congress last December effectively stripped the Supreme Court of the right to hear habeas corpus claims from any of the hundreds of detainees being held at Guantanamo Bay. Clement says it's not necessary for Congress to have "consciously thought it was suspending the Writ." Perhaps the lawmakers just "stumbled on the suspension of the Writ," which would also be fine, Clement suggests.
Souter stops him, amazed. "The suspension of the Writ," the justice sputters, is the most "stupendously significant act" Congress can undertake. "Are you really saying Congress may validly suspend it inadvertently?" he asks. It's the morning's best example of the degree to which, for Souter as well as for Justice Stephen Breyer, today's argument is an agonizing exercise in Bush administration doublespeak. Clement's arguments are frequently drawn from the well of "because the president says so," or "because the president is the president," or "because it's wartime." They start to sound like Alberto Gonzales' testimony before Congress or the president's signing statements: legal analysis by assertion and justification by double standard. This war is like every other war except to the extent that it differs from those other wars. We follow the laws of war except to the extent that they do not apply to us. These prisoners have all the rights to which they are entitled by law, except to the extent that we have changed the law to limit their rights.
In other words, there is almost no question for which the government cannot find a circular answer.
The issue before the court is the legality of President Bush's military tribunals. The two key war-on-terror cases of 2004— Hamdi v. Rumsfeld and Rasul v. Bush—established that the administration could detain enemy combatants. But these combatants would nevertheless be entitled to some neutral adjudicatory process, the contours of which the justices left to be determined. The question for the court is whether the military tribunals established by the president by military order in 2001 meet the justices' standard for neutral and adjudicatory. The tribunals rely neither on the Geneva Convention nor the Uniform Code of Military Justice. They allow for the admission of unsworn testimony; may preclude a detainee from appearing at his own trial; and do away with the presumption of innocence. Punishment may include death.
Salim Ahmed Hamdan, alleged to be Osama Bin Laden's chauffeur, faces trial before such a tribunal on charges of conspiracy to help terrorists. His appeal encompasses a host of statutory and constitutional challenges to the tribunals. Hamdan won in the district court and lost in the D.C. Circuit federal court of appeals. Chief Justice John Roberts joined in the D.C. Circuit decision before his promotion and has thus recused himself today.
As if the court didn't have enough weighty matters on its collective mind, it also must grapple with the Detainee Treatment Act, which Congress passed last December to amend the federal habeas corpus statute. The idea was to prevent the Guantanamo detainees from getting a full habeas review—which often includes a chance for the accused to present evidence—in the federal courts. The government argues that the DTA strips the Supreme Court of jurisdiction to hear Hamdan's case. So, the court has to start there: Can it even reach the merits of the legality of the commissions?
The press corps begins the day with a different question: What the hell has gotten into Justice Antonin Scalia? Between his extracurricular pronouncements on the arguments in this case (and I urge you to listen to the whole speech yourself) and his extracurricular hand signals last weekend, nobody is quite sure what has come over the man. He is ever more the Bill O'Reilly of the High Court.
Neal Katyal represents Hamdan this morning in a special 90-minute session that is sufficiently important to merit audio broadcast, according to the unknowable metric used by the chief justice. Katyal launches into his argument about why the DTA doesn't apply to cases like Hamdan's that were pending in the courts when the law passed. Rookie Justice Samuel Alito—who speaks very little again today—asks why Hamdan can't just raise these claims later, after the military tribunal has issued its final decision, the way he would in an ordinary criminal proceeding.
"This is not an ordinary criminal proceeding," replies Katyal. "If it was we wouldn't be here. … This is a military commission unbounded by laws, the constitution, or treaties. It replicates the blank check this court rejected in Hamdi." Katyal says that the Framers had a "deep distrust of military tribunals" and that the only thing that assuages this distrust is that Congress is charged with setting clear rules.
Katyal then turns to the conspiracy charge Hamdan faces. He explains that the laws of war reject the charge of conspiracy as a substantive crime. "Even if this tribunal is authorized," he claims, "allowing this charge of conspiracy would open the floodgates to the president to charge whatever he wants."
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.
"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.