Update II: Read Jon Wiener's Arguing About Gitmo in The Nation.
Update: The transcript of today’s consolidated argument in Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196) is available at U.S. Oral Arguments Transcripts.
-End of delayed C-Span 3 stream of oral arguments -
Facing hostile questioning from Justices Scalia, Roberts and Alito, attorney Seth Waxman, seeking habeas corpus protections for Guantanamo Bay detainees ran into what appears as an authoritarian block representing the ideology of the George W. Bush administration.
Waxman is seeking for the accused access to the U.S. federal courts, via habeas corpus and other means, to challenge the detention and conditions of confinement of the accused.
Solicitor General Paul Clement, arguing for the Bush administration, faced skeptical and aggressive questioning from Justices Stevens, Souter, Breyer ("Habeas (writs) are supposed to be speedy"), and Ginsberg.
Clement seeks the Court to rule that the Bush administration may deny habeas corpus based on reasons of geographical jurisdiction, lack of POW status of detainees, and common and case law deference to the Executive branch in times of war.
Clement has also argued that the Congress and Executive branch have already spoken on the matter.
Justice Kennedy asked questions about the applicability of past decisions and the authority of a given U.S. Court of Appeals Court to declare the Military Commissions Act unconstitutional, and also raised the possibility of a lower federal court reviewing the issue.
Kennedy also asked Clement what appeared to be a skeptical question on the administrative procedures implementing the Military Commissions Act (MCA) in light of the detainees having now had no liberty for six years, and Clement's comment that: " ... the courts -- the lower courts should be instructed to with due cognizance for the fact these individuals have been detained six years and this is the process that has been provided in order to decide whether or not that continuing custody is lawful, they should expedite this to the greatest extent possible."
Asked Kennedy, "How can we fit your position when we have no jurisdiction here?", as the Congress and Executive branches have already spoken on the matter with the enactment of the MCA which bars federal courts from hearing detainee appeals, in what appears to be one very weak aspect of the Bush administration's case.
The capacity of the Congress and Executive branch to simply declare that the U.S. Court system may not rule on a legislative act flies in the face of centuries of American jurisprudence.
Justice Clarence Thomas, in keeping with his habits during oral arguments and what some observers see as a lack of legal curiosity, asked not a single question in this possible landmark case.
In rebuttal, Waxman said the traditional writ of habeas corpus does apply to situations of executive detention like what Bush has done at Guantanamo Bay, and that military tribunals are "inadequate".
Based on the ideologies in past decisions, here's a wild guess on how the Justices will rule:
John Paul Stevens (1975) – Will vote to restore ancient and fundamental protection of habeas corpus for Guantanamo Bay detainees, per the U.S. Constitution and international law.
Antonin Scalia (1986) – Will vote to uphold Bush administration military tribunals, with no habeas corpus protections.
Anthony M. Kennedy (1988) – ?
David H. Souter (1990) – Will vote to restore ancient and fundamental protection of habeas corpus for Guantanamo Bay detainees, per the U.S. Constitution and international law.
Clarence Thomas (1991) – Will vote to uphold Bush administration military tribunals, with no habeas corpus protections.
Ruth Bader Ginsburg (1993) – Will vote to restore ancient and fundamental protection of habeas corpus for Guantanamo Bay detainees, per the U.S. Constitution and international law.
Stephen G. Breyer (1994) – Will vote to restore ancient and fundamental protection of habeas corpus for Guantanamo Bay detainees, per the U.S. Constitution and international law.
Chief Justice John G. Roberts (2005) – Will vote to uphold Bush administration military tribunals, with no habeas corpus protections.
Samuel A. Alito, Jr. (2006) – Will vote to uphold Bush administration military tribunals, with no habeas corpus protections.
Al Odah v. U.S. Amicus Briefs page
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