Having
likened the 3 Guantánamo matters argued before the U.S. Supreme Court to rounds of a boxing bout, might as well extend the sports metaphor long enough to score yesterday's 3d round, recorded in this
transcript and this
audio. (Sampling of others' critiques
here,
here,
here,
here.)
Award for Keeping a Glove in the Ring While Hanging in the CornerThis one goes to the
U.S. Constitution.
Throughout nearly 1-1/2 hours or argument only a few explicit mentions were made of the
Suspension Clause (none citing its precise text), which greatly narrows governmental power to suspend the writ of habeas corpus. There's only 1 mention, at p. 66, of
Johnson v. Eisentrager, a 1950 judgment that accorded virtually no constitutional protection for noncitizens abroad, a judgment that the Court in the 1st Gitmo case,
Rasul v. Bush (2004), did not praise but did not overrule, either. (SCOTUSblog's Lyle Denniston
asks: "Can constitutional issues be finessed?")
Most Ignored Relevant Body of LawHuman rights.
Particularly ignored yet relevant were human rights norms that the United States is obligated to uphold by dint of its ratification of the
International Covenant on Civil and Political Rights. Even assuming
arguendo that international humanitarian law like that codified in the
Geneva Conventi
ons does not apply fully to all of these detainees, human rights law does. It requires that each state afford each human being
minimum protections, among them freedom from unjustified and unreviewable detention. It has an
extraterritorial component that, as I've
written, is broader than that which the U.S. government says is applicable under U.S. law. It provides concrete, actual-fact-based examples of something that troubled Chief Justice
John G. Roberts, Jr. (right; see p. 17); that is, how to adjudicate a standard based on "jurisdiction and
control," rather than "sovereignty." And it rejects the notion that severe deprivations of rights may occur without any
recourse to remedy. Those principles would aid understanding of U.S. constitutional questions at play in this case. The failure to mention them set the scene for the next 2 items:
Missed OpportunityThis armchair spectator discerned something that perhaps was not apparent in the real time of argument:
Justices on all sides struggled with the matter of timing. Justice
John Paul Stevens (left) was among those who raised the issue with the government's attorney, Solicitor General
Paul D. Clement:
JUSTICE STEVENS: Isn't the main issue the fact that it has taken six years to have the issue resolved -- ... They say they have been unlawfully detained for six years from the beginning. And isn't that delay relevant to the question of whether they have been provided such a wonderful set of procedures?
GENERAL CLEMENT: Well, Justice Stevens, I think the delay is going to be relevant to whether or not courts should expedite hearings, and the like. But I don't think it should cloud the basic constitutional question before the Court.
(p. 58) Detainees' attorney,
Seth P. Waxman, had made early mention of that fact that petitioners have endured detention without charge for 6 years now, and he did decline Chief Justice Roberts' invitation to concede that the length of detention did not matter to a habeas court. (pp. 7-8)
Yet in these exchanges and in Justices' other mentions of the timing issue, neither attorney cited authority for his position; a listener plausibly might've thought that reminders of timing sound in equity and not in law.
That, however, is not the case. Limiting the length of deprivation of right to the precise time period of the emergency that provoked deprivation is a core concept of the
law of derogation, the human rights doctrine that allows temporary, carefully circumscribed suspensions of civil liberties. (It's detailed
here; posts
here.) In this body of law timing is not an emotional makeweight; it is, rather, an essential element in determination of the justifiability of the suspension.
One needn't even venture abroad to make the same point, for the importance of timing is evident in recent Supreme Court decisions that have endeavored to tailor governmental measures to fit the governmental interest at stake. Consider, for example, the
Court's declaration, in section III(B) of
Grutter v. Bollinger: Affirmative action plans designed to promote racial and ethnic diversity may continue, but only for the next quarter-century, when, in the Court's estimation, the societal exigency that compels them will have abated. Consider too the words with which Justice
Anthony M. Kennedy (right) distinguished
Eisentrager at page 4 of his concurrence in
Rasul v. Bush:
Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.
The relevance of this passage to the current dispute seems patent, as does the necessity of either side to secure the vote of Justice Kennedy. The frequency with which other Justices discussed timing suggests that they understand this. The failure to address the law surrounding the issue of timing is thus curious as well as unfortunate.
Precision CountsInvoking a phrase that is common among opponents of the government's post-9/11 detention program, Waxman said of Guantánamo:
If our law doesn't apply, it is a law-free zone.
(p. 14) Unfortunately, there was no opportunity to build upon this rhetorical flourish. As the paragraph on "Most Ignored" demonstrates,
U.S. law is not the only law at play. Stated precisely: The United States is the only entity with any ability to exercise its will at Guantánamo. Thus if the Court should agree with the court below that habeas jurisdiction does not extend to Guantánamo, it would endorse the establishment of a zone that, though yet
constrained by (human rights) law, is free from sanctions for violation of that law. This is a distinction that makes a difference.
Best HypotheticalWinner here is Justice
Stephen G. Breyer (left).
He uncovered an instance in which the curtailment of judicial review might well result in a detainee's claim having no judicial review -- a result that undercuts claims that the curtailed Combatant Status Review Tribunal (CSRT) process is an adequate substitute for the writ of habeas corpus:
JUSTICE BREYER: [S]uppose that you are from Bosnia, and you are held for six years in Guantanamo, and the charge is that you helped Al-Qaeda, and you had your hearing before the CSRT.
And now you go to the D.C. Circuit, and here is what you say: The CSRT is all wrong. Their procedures are terrible. But Judge, for purposes of argument, I concede those procedures are wonderful, and I also conclude it reached a perfectly good result.
Okay? So you concede it for argument's sake. But what you want to say is: Judge, I don't care how good those procedures are. 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, in the absence of some special procedure in Congress for preventive detention.
That's the argument I want to make. I don't see anything in this CSRT provision that permits me to make that argument. So I'm asking you: Where can you make that argument?
GENERAL CLEMENT: I'm not sure that he could make that argument.
JUSTICE BREYER: Exactly. ... If he cannot make that argument, how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people would like to make? (pp. 38-39)
Best Use of Comparative LawBreyer, again.
Revisiting the colloquy above, he challenged Clement's claim that the unavailability of a U.S. forum for adjudicating the hypothetical question did not matter, for the reason that England would not grant such a forum, either:
JUSTICE BREYER: ... [Y]ou said well, neither could they in England. Well, that I wonder. .... After all, England doesn't have a written constitution. So it is hardly surprising if they concede everything away in England, they're not going to be able to make any argument. ... (p. 47)
Best Advocate on Behalf of His or Her Position
Hands down, this one goes to various
Justices.
Several put forward their points of view clearly and concisely. None feared to challenge, and their challenges laid bare weaknesses in opponents' positions. As in prior rounds, Justices showed themselves prepared, engaged, and able to buck and weave within the complex legal ring that has resulted from the post-9/11 actions of the Court, of President George W. Bush, and of Congress.
Examples include:
Justice Antonin Scalia's sparring with detainees' attorney over the long 
history of habeas corpus. It began with a statement of detainees' position that
recalled the declaration of former Attorney General Alberto Gonzales that there is no right to habeas:
JUSTICE SCALIA: ... Your assertion here is that there is a common law constitutional right of habeas corpus that does not depend upon any statute.
Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England.(p. 10)
Later supplying a detailed answer to the question: Justice
Breyer. (pp. 24-26)
The steering by Justice David H. Souter (left) that led detainees' attorney away from what might have seemed a concession that Congress could tinker with its new-minted mechanisms a little and thus solve procedural fairness concerns:
JUSTICE SOUTER: ... [T]he Guantanamo detainees ... wouldn't they all run into the problem of -- the neutrality problem that you raised? The commanding general, the Secretary of Defense, in effect, have already said these people belong where they are. Wouldn't that make it impossible, really, at this stage of the game to substitute a military procedure?
MR. WAXMAN: I certainly think so. ... (p. 23)
Justice Souter again, along with Justice Stevens, jabbing at the government's contention that detainees' "status has been reviewed by a tribunal modeled on Army Regulation 190-8," which implements the
3d Geneva Convention as U.S. law. Clement said that in affording a "personal representative" to detainees, the new plan goes farther than the old; at this, the 2 Justices secured Clement's concessions that the "personal representative" does not act as counsel for the detainee; indeed, he is obliged to report to the government any "material intel
ligence information" he might learn while talking with the detainee. (pp. 32-34)
Justice Souter, joined this time by Justice Ruth Bader Ginsburg (right), also posed a challenge to a government position that long and loyal readers will recognize as
my own pet peeve. Echoing a passage in their separate opinion in
Hamdi v. Rumsfeld (2004) (section III(C)), they said:
JUSTICE SOUTER: ... I didn't want to get into the prisoner of war point. But if you did want to get into it, the problem with your prisoner of war point is the United States is not treating them as prisoners of war. They have not been adjudicated prisoners of war, or otherwise, under the Third Geneva Convention, and that argument on the Government's part is entirely circular.
GENERAL CLEMENT: With respect, Justice Souter ---
JUSTICE GINSBURG: General Clement, I remember in a prior hearing about Guantanamo that the Government was taking the position firmly that these detainees were not prisoners of war and, therefore, were not entitled to the protection of the Geneva conventions.
So if the Government is maintaining that position, these people are not prisoners of war, then the treatment of a prisoner of war is not relevant. (pp. 41-42)
When
Clement tried to give elasticity to the concept of detention-during-wartime advanced by the plurality in Hamdi, there was this:
GENERAL CLEMENT: ... hold them as we would hold anybody else who was captured as preventative detention.
JUSTICE STEVENS: For the duration of hostilities, if you can show that they are enemies.
GENERAL CLEMENT: Well, I think if we can show that they were enemy combatants, that's exactly right.
(p. 51) The requirements of that "showing" are at the core of the case, and so the desired elasticity was snapped back.
Keeping Eyes on the PrizeThis goes to
Justice Ginsburg.
Throughout the argument she worked, sometimes with other Justices yet without much success, to get attorneys to address the threshold issue in the case. One such occasion:
JUSTICE GINSBURG: The D.C. Circuit ... said that the act[ion] that these people are trying to bring [--] habeas [--] doesn't exist. And it seems to me the only question before us is whether there is jurisdiction in the court of appeals to decide that threshold issue.
(p. 67) It remains to be seen whether the Court as a whole will train its focus on that preliminary issue or, as the argument itself did, go to the ropes on the myriad other issues in this litigation.
With all the Gitmo buzz coming from D.C. these days, not much attention's been paid to the bayside camp itself. But legal news is being made there, too:
The other detainee case that's moving forward is that of Omar Khadr (left), who was 15 when captured. A military judge dismissed it in June; a few months later, however, the newly minted U.S. Court of Military Commission Review reversed that decision. Today, defense counsel labors under "an order not to tell anyone, including his client, who will be testifying against him." The attorney called it "an unprecedented level of secrecy that undermines the Canadian terror suspect's trial in Guantanamo Bay."
Today the U.S. Supreme Court embarked on its 3d voyage in 3 years to 
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