Justice Anthony Kennedy says (Kennedy-like), "But habeas corpus is concerned with the safety of the prisoner to the extent it's controlled by our authorities." (He doesn't think people should be released to lynch mobs, but adds—for the benefit of our foreign friends—that this is "just a hypothetical question.") Roberts practically erupts that Garre should not "concede that habeas is concerned with the safety of the individual as opposed to his custody." This leads Garre to go all doe-eyed about the "sovereign right and jurisdiction" of foreign countries. You know, the same foreign countries we like to invade and occupy?
Ginsburg points out the "high risk that [Munaf and Omar] will be subject to torture and abuse," quoting Iraq's deputy justice minister, who admits in one of the briefs that "we cannot control the prisons." Garre replies that the torture and abuse in Iraq comes out of the Ministry of the Interior and Ministry of Defense and not the Ministry of Justice (it's good to specialize), but he warns that it's not for the courts to engage in fact-finding about the nature of the lynch mobs awaiting prisoner release. "These are matters for the executive to assess." Garre asks the court to respect the determination of the executive branch and the "justice systems of other sovereign nations." Priceless.
Joseph Margulies represents Munaf/Morgan and Omar/O'Hara. His first few minutes of argument are impressive. He's in the middle of distinguishing Hirota from his clients' case when suddenly Justice Stevens kind of hurls himself at his head like an enraged bobcat in a bow tie. "Does your case depend entirely on the fact that these are American citizens?" Margulies tries to reply, but Stevens cuts him off again and then again. And yet again. Stevens beats on him like a drum about whether or not the detainee's citizenship matters and then about whether or not the place of detention matters, and by the time Kennedy gets his mitts on Margulies, it's no longer clear what matters at all. Ginsburg kneecaps him with yet another hypothetical, and Justice Samuel Alito starts up again with the citizenship.
At some point, both Souter and Stevens are hollering at once, and Roberts is grinning that there is no bright-line rule left at all. Roberts contends that "the historic purpose of the Great Writ was to challenge custody," but habeas relief isn't really even what Margulies' clients want. This leads Margulies to draw an invisible imaginary four-box-decision grid that obscures rather than clarifies an invisible theoretical discussion about prisoner releases versus transfers. Most of the rest of the argument bogs down in whether the transfer of prisoners is lawful or unlawful, and what relief they could possibly be seeking in the first place (three points for Eric Posner). It finally runs aground when Margulies and Kennedy lock horns over whether there is a due-process restriction on release by the United States to another sovereign nation. Margulies thinks yes. "That's just got to be wrong," Kennedy says flatly.
I stopped counting the number of times I heard someone claim to be "confused." But the government somehow managed to make a difficult case easier, and the opposing side turned a rather clear-cut case into a roller derby. That's probably why Justice Stephen Breyer steps in during the last few moments to ask Margulies whether he needs all this extraneous stuff to win this case. "You've been arguing for all sorts of things that seem far broader than that."
Not a pretty day at the high court and not at all clear whether a baffling oral argument helped wrest defeat from the jaws of victory for Munaf and Omar.