Justices wrangle with lawyers over Guantanamo

It was Breyer who brought the case back to understandable terms for the layman.

Suppose were you were from Bosnia, he said to Clement.

You would want to make this case, Breyer said: “Judge, I don’t care how good those procedures are. I’m from Bosnia and 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.”

Where could a detainee make that argument, under the MCA?

“I’m not sure that you can make that argument,” Clement replied.

“Exactly,” snapped Breyer.

Breyer wants something equivalent to habeas
“Then how does this become an equivalent to habeas — since that happens to be the argument a large number of these 305 people would like to make?”

You can count Breyer as one vote against the MCA.

Later, Breyer seemed to suggest again that maybe Congress ought to get around to enacting “some special statute involving preventive detention.”

Apart from Breyer and Souter, who seemed almost certain to rule against Clement and the MCA, and Scalia who remained disdainful of Waxman’s idea that foreign soldiers ever had or should have a constitutional right to habeas corpus, here’s how the justices lined up, based on their questions and comments:

• Chief Justice John Roberts seemed at times eager to want to help Clement make his case. But at another point Roberts seemed worried that the law might not allow the Court of Appeals to order release of a Guantanamo prisoner if it found that the government had violated its own procedures. Clement assured him “there’s no obstacle to that” in the law.
• Justice Kennedy seemed at one point willing the let the Court of Appeals handle challenges to adequacy of procedures and the definition of unlawful combatant, more or less accepting what Congress decided in the MCA.
• John Paul Stevens worried that some people might have been kidnapped, sold for a bounty and shipped to Guantanamo. Is it right to hold such people? Said Stevens: “If they say they’ve been unlawfully detained for six years, isn’t that delay relevant to the question of whether they have been provided such a wonderful set of procedures?”
• Samuel Alito seemed worried that if court strikes down the MCA, detainees would have access to classified information and the ability to subpoena witnesses – the things accused criminals have in regular habeas proceedings.
• Clarence Thomas was silent, as he usually is during oral arguments.  
• Ginsburg seemed a 'no' vote on the MCA.

In the audience: Kennedy, Graham
Watching along with a small battalion of lawyers were celebrities such as one of the designers of the MCA, Sen. Lindsey Graham, R-S.C., and Sen. Edward Kennedy, D-Mass., Breyer’s former boss when the justice worked as counsel to the Senate Judiciary Committee. Kennedy entered the court 40 minutes into the argument.

After the exhausting morning ended, Clement, Waxman, and Graham all gathered in a jovial huddle in the hallway outside the courtroom with Waxman joking about yet another obscure old English case which he did not have time to use in his argument to the court.

“German and Japanese prisoners were never allowed to go into court and ask a federal judge to free them," said Graham Tuesday. "It would be one of the most damaging decisions in the history of this country to allow enemy prisoners to petition domestic federal judges to determine whether or not they are properly confined as enemy combatants.”

In one sense, what played out before the justices Wednesday will be a surrogate battle of the Bush administration versus the past Clinton administration — and perhaps versus a future Clinton administration.

Waxman has contributed $2,300 each to the presidential campaigns of Obama and Hillary Clinton, according to Federal Election Commission records. In 2004, Clement contributed $2,000 to the Bush re-election campaign.

MORE FROM POLITICS

Politics Section Front

Registration gains favor Democrats   McCain accuses Obama of lying   Palin expands character attacks   Bush wins ruling in prosecutors' case Republican lawmakers: Stop Palin ethics probe Mudslinging grips McCain, Obama campaigns Essay: When Palin talks, women talk NYT: McCain, Obama sharply divided on Iraq Briefing Book: Shooting for the sweet spot Newsweek: Obama and the (faint) echoes of Lincoln Politics Section Front   Add Politics headlines to your news reader: