Waxman, having offered up a batch of in re cases from various British sirs and lords and the Isle of Jersey (all of which Scalia blows off like dandelion fluff), says he'll take one more shot at persuading Scalia. "Fine," laughs the justice. "Line 'em up!"
Waxman replies that even if we only have Guantanamo on loan from the Cuban government, "the United States exercises complete jurisdiction and control over this base." He's not making this up—he's quoting Justice Kennedy in Rasul. Waxman adds, "No other law applies. If our law doesn't apply, it is a law-free zone."
Waxman offers up several more slides from his trip through the history of habeas, and Scalia waves them all away. Waxman finally says, "I think at this point I have to plead exhaustion." Best cure for Scalia exhaustion? Two Excedrin and a fifth of bourbon.
To the rest of the court, ancient history is less interesting than recent history. Justice John Paul Stevens presses Clement on how the prisoners' "personal representatives" in the CSRTs are selected and whether their primary obligation is to their client or to the Army. Justice David Souter wonders whether the CSRTs have the authority to release a detainee.
Breyer pushes and pushes at Clement on whether a detainee can currently make the simple argument: "I'm from Bosnia. I've been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me." The MCA provides for federal court review on the limited question of whether the CSRTs followed their own made-up procedures, and not on the big important matters of, er, you have the wrong guy.
"I'm not sure he can make that argument," Clement answers. "Exactly!" crows Breyer. "If he cannot make that argument, how does this become an equivalent to habeas?
When Souter asks Clement if he isn't simply "rearguing Rasul" and comments that "we have passed that point," the SG responds that the existing system represents a "remarkable liberalization of the writ [of habeas corpus], not some retrenchment or suspension of the writ." Intellectual reframing provided by Dickens: You'll take this crummy soup we've offered, and you'll ask for more.
Justice Anthony Kennedy—to whom, of course, all eyes are glued—asks pointed questions about whether the type of judicial review Breyer contemplates can be afforded the detainees under the appellate review before the D.C. Circuit Court of Appeals as Congress provided for in the MCA. He also asks how the Supreme Court can solve the pragmatic problems in the MCA if "we have no jurisdiction here?" (If the court strips itself of jurisdiction to hear this habeas case, it also strips itself of the power to solve the little matter of the CSRTs being ridiculous.) Kennedy wonders if the justices' opinion should be limited to "have a nice day, everybody." Clement seems to concede that the court could give him the win while still providing for more robust review than the MCA allows.
Emily Bazelon argued forcefully yesterday that the government's claim that it is giving Guantanamo detainees more rights than anyone like them has ever received is both historically and constitutionally bizarre. It may sound good rhetorically, but it forces the administration to argue—as Clement does today—that the detainees have terrific procedures—as good as a habeas proceeding! Better, even!—and that the detainees should be grateful for them.
But I just couldn't count five votes today for the proposition that the kangaroo tribunals are better than the alternatives, or even that they are any good at all. After six years, zero trials, multiple suicide attempts, and myriad resignations, even the claim that serfs on the Isle of Jersey in 1597 would have been delighted with the CSRTs sounds a false note. The one unifying theme today may be that every justice present longs for the good old days of the 14th century. The conservatives because life was better then. And the liberals because even the Middle Ages look better than what the administration is doing now.