SCOTUS on Tribunals

Yesterday an eight-person Supreme Court (Chief Justice Roberts recused himself since he ruled on an earlier incarnation of the case) heard oral arguments in the watershed case of Hamdan v. Rumsfeld, which tests the constitutionality of the military tribunals set up to try enemy combatants held at Gitmo. The case warranted not only an extra half hour of arguments, but also a very rare immediate release of the audio recording. I listened to much of the discussion last night, and I was quite surprised at the judicial smackdown delivered to those arguing the Administration's position.

The two main points in this case are, first, whether the Court has jurisdiction at all after the passage of the Detainee Treatment Act late last year (after the Court had accepted the case on appeal) and second, whether the military tribunals are a constitutional way to try terror suspects/enemy combatants/Osama's chauffeur.

Linda Greenhouse is on the story as always for the New York Times; David Savage writes for the LA Times, and Dahlia Lithwick complements those pieces with her marvelous dispatch over at Slate. Greenhouse notes that the Administration's argument, as voiced by Solicitor General Paul Clement, seemed to frustrate many of the justices: Clement's "stolid refusal to concede that any of the government's positions, on the jurisdictional as well as ultimate questions of the case, might present even theoretical problems provoked the normally soft-spoken Justice Souter into an outburst of anger."

What seemed to upset Souter (at this particular point) was a real eyebrow-raiser from Clement in a response to Justice Stevens, who had asked him if he through Congress had suspended habeas corpus rights for the prisoners in the Detainee Treatment Act:

Clement (in part): "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."

Souter: "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take, and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence? You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

Clement: "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States ..."

Souter: "Now wait a minute! [waving a finger, as Greenhouse and the others note] The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

There were a few other interesting exchanges, including one in which Clement suggested that detainees should go through the tribunal process and then argue on appeal in federal court that that process was improper. Justice Ginsburg responded "Straighten me out. I thought it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States." Clement replied "That is true, Justice Ginsburg." Whaaa??

Thankfully Lithwick is here to explain Clement's strange and circular arguments: her piece is titled "Because I Say So." She calls the Souter-Clement sputter-fest "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."

Because it's so bizarre, another little bit:

"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."

..."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."

This sounds like something out of Wonderland, or Oz, or a bad Monty Python sketch. The Administration's legal positioning gets curious and curiouser with every exercise in the open air, and the more it's voiced, the more totally insane it sounds.

Lithwick writes in her penultimate paragraph "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."

At least five of the eight justices sitting yesterday (Souter, Breyer, Kennedy, Ginsburg and Stevens) appeared inclined to disagree with the Administration's view. Justices Scalia and Alito seemed to be leaning the other way; Justice Thomas did not speak. Judging from how quickly the decisions have been coming from the Court lately, we may know the outcome of this case sooner rather than later, which would certainly be a good thing. It's time to end "Because I Say So" executive power, and this Court has the opportunity right now with this case to do just that.