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Tuesday, March 28, 2006
Analysis: Hard day for government in Hamdan case
Posted by Lyle Denniston at 01:02 PM
With Justice Antonin Scalia taking part -- and, in fact, providing the only clearcut signs of unstinting support for the federal government's arguments -- the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously -- and repeatedly -- advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress' power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail.
If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the "military commissions" to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the "commission" system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far -- terrorism conspiracy. There was little exploration of ultimate arguments against the "commission" setup: the claim that the President had no power to create them on his own, without specific authorization from Congress, and, alternatively, the claim that Congress has not given him that power.
With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.
There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.
The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement, defending the tribunals, seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia's points as if they were stronger than his own.
For the most part, the session was subdued and understated, especially given the historic dimensions of the dispute before the Court -- a major test of Executive power in the midst of vigorous presidential responses to a proclaimed "war on terrorism." But there was definitely an emotional high point, and that came when Breyer, then Souter, focused on the law that Congress passed late last year that threatened to scuttle the Hamdan case, and all other pending court cases filed by foreign nationals now being detained at Guantanamo Bay, Cuba. That law, the Detainee Treatment Act, is a court-stripping measure that raises serious questions about whether President Bush's orders dealing with captured foreign detainees will ever be fully tested in court.
The drama developed slowly, and a bit surprisingly, since the meaning of the new detainee law and its impact on the courts had not figured prominently in the hearing up to that point. But the issue clearly was looming large in the background.
In the midst of the Solicitor General's argument, the Justices were exploring the impact on the detainees' fate of the 1949 Geneva Convention, dealing with the rights of wartime prisoners. The discussion had moved into questions over how, if at all, detainees could bring their claims to protection under that Convention before a "military commission." Then Kennedy questioned whether detainees appearing before such a tribunal could challenge its very legitimacy. Clement said such a challenge could be made, but he accepted Scalia's point that this could only come after a "commission" had finished a trial -- thus barring any pre-trial challenge to the "commission" scheme itself.
Souter protested, saying he was not sure a "commission" could rule on "the very basic qauestion" of whether that entity was set up in a legal way. Breyer then jumped in, saying with fervor that the language of the Detainee Treatment Act did not support Clement's reading of it. But, Breyer went on, the contention that the Act had taken away the courts' power to decide any habeas challenge to detainees' situation would raise "the most terribly difficult question of whether Congress can constitutionally deprive the courts of jurisdiction in habeas cases" -- the suspension-of-the-writ question.
Shortly afterward, Breyer persisted, his voice tense, saying that the government's interpretation "inevitably raises the question whether the Act -- if not a suspension of habeas" was nevertheless unconstitutional if it meant that Congress had removed "the jurisdiction of the courts in any significant number of cases." Souter joined in, suggesting that the Court's interpretation of the Detainee Act should take into account the need to avoid the question of suspension of habeas. A moment later, Souter gravely observed that suspension of the writ was "just about the most significant act that the Congress of the United States can take." If, at the end of the day, Souter said, the Court must reach that constitutional issue of congressional power, "the answer may be that Congress did not intend to do it."
Soon after that exchange, Justice Kennedy sought to bring the argument back to the makeup of the "commissions." He wondered whether Clement was "going to spend any more time on the regularity" of those tribunals. Breyer chimed in to say that, if the President did have the power that Clement was claiming regarding the "commission" system, "the President can set up a commission and go to Toledo and arrest an immigrant and try him." Clement's response was to bring back the specter of 9/11. "This is a war," he said, and presidents have long had the power in wartime to order the trial of "classic war crimes."
(NOTE: Justice Scalia has said nothing publicly in response to a suggestion, by five retired admirals and generals taking part in the Hamdan case as amici, that he should not take part because of his remarks in Switzerland recently -- remarks that the retired officers said suggested he may have prejudged the case. As the Court prepared to hear the Hamdan case Tuesday, Scalia was seated, but then stood up. He did so, however, only to arrange the materials in front of him; he then sat own, silently indicating that he was participating.)

There are some good comments at the link. I'm looking for a link to the audio. I didn't listen to the argument, myself.