On Wednesday, the U.S. Supreme Court heard arguments for a third time in a major case involving the rights of detainees at Guantanamo Bay, Cuba. The importance of the case was underlined by the fact that for the first time this term, the court authorized the same day release of audio of the argument.
Even the pre-dawn snowfall did not deter about 73 people from sleeping on the Supreme Court plaza in hopes of getting one of the few public seats for Wednesday's argument. This was a historic day at the high court, and everyone knew it.
The question facing the court is whether the detainees have the right to go into the U.S. courts to challenge their detentions, using the constitutionally guaranteed procedure called a writ of habeas corpus. The Founding Fathers put the writ into the Constitution as a check on the government's power to arbitrarily put someone in prison.
But the Bush administration, backed by the federal appeals court in Washington, contends that the detainees have no constitutional rights because they are being held outside the United States, and that even if they do, the Constitution allows suspension of the writ of habeas corpus if an alternative is put into place that is adequate and effective.
The Bush administration argues that Congress approved just such an alternative when it stripped the courts of the right to hear the detainees' habeas corpus challenges. The detainees, however, counter that the system for evaluating them is so rigged as to be unconstitutional, because they are denied lawyers, denied access to much of the evidence against them, and because the Combat Status Review Tribunals are subject to command influence and presume the government's evidence to be accurate.
What's more, the detainees note that they have no right to appeal or present their own evidence, that only one court, the D.C. Court of Appeals, is allowed to hear their cases, and the statute passed by Congress only allows that court to evaluate whether the tribunals followed their own procedures — procedures that the detainees claim are deeply flawed.
Inside the court Wednesday, the argument was mano a mano — current Solicitor General of the United States Paul Clement versus a former solicitor general, Seth Waxman. Waxman went first, contending that his clients should have the right to challenge their detentions in the U.S. courts.
"All have been confined at Guantanamo for almost six years," Waxman said, "yet not one has ever had meaningful notice of the factual grounds of detention or a fair opportunity to dispute those grounds before a neutral decision-maker."
"Your argument wouldn't be any different with respect to the availability of habeas if these people were held for one day, would it?" Chief Justice John Roberts asked.
"I want to give a qualified disagreement with your hypothetical," Waxman replied. "There may be military exigencies. There may be a limited time period in which it is inappropriate for a habeas court to rule."
Justices Samuel Alito and Ruth Bader Ginsburg wondered whether detainees held at other bases in Germany or Iraq, for instance, would also have a right to habeas corpus. Waxman said that Guantanamo is different because it is the only place where U.S. law has exclusive jurisdiction.
"In another place, jurisdiction would depend on the facts and circumstances, including the nature of an agreement with the resident sovereign over who exercises control," Waxman said.
Justice Antonin Scalia intervened at this point to suggest that the detainees are making an unprecedented argument.
"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?" Scalia asked.
"The answer to that is a resounding yes," Waxman said.
Waxman and Scalia then squabbled for several minutes over the meaning and circumstances of previous cases dating back to the 1700s.
Justice Alito followed up, asking, "What if in a future war many of the soldiers in the opposing army don't wear uniforms? What if it's a war like Vietnam and thousands of prisoners are taken into custody and they are brought to prisoner-of-war camps in the United States as occurred during WWII? Every one of them, under your theory, could file a habeas petition."
Waxman replied that in Vietnam — the only other war in which the U.S. fought an enemy that didn't wear uniforms — captured enemy combatants were accorded hearings close to the battlefield, were assigned lawyers, and, he said, there is no indication that the captured men were denied access to the evidence being used against them.
In short, Waxman said, there was fair notice of the facts and the chance to rebut them, as well as a neutral decision-maker who was insulated from command influence.
Justice Anthony Kennedy, widely believed to be the deciding vote in this case, asked whether habeas proceedings should wait until the D.C. Court of Appeals rules on whether the CSRT hearings have followed the procedures established as an alternative to habeas corpus.
To date, replied Waxman, the CSRT hearings have been largely in secret, without the detainee present, and with the presumption that the evidence against each one is accurate. That's the procedure set down in the Detainee Treatment Act.
"There is no prospect that the DTA proceedings will be conducted with alacrity or certainty," Waxman replied. "In the court of appeals, Justice Kennedy, the government after two years has not produced the record on review in a single case. It is now said ... that it cannot do so. And the court of appeals has suggested that what the government ought to do is hold entirely new CSRT proceedings."
Following Waxman to the lectern, Solicitor General Clement all but threw in the towel on some of the argument the Bush administration made in its briefs to the court. Yes, Clement seemed to say, the appeals process for detainees is very limited, but the Supreme Court can pretty much do anything it wants to broaden the appeal rights of the detainees.
Chief Justice Roberts said that the law passed by Congress stripping the detainees of habeas rights is unclear as to whether the appeals court can order a detainee released. If there is a defect in a hearing, Clement said, the appeals court should order a new CSRT hearing.
But Clement added, "If what the Constitution requires to make the DTA to be an adequate substitute is the power to order release, there is no obstacle in the text of the DTA to that."
Justice David Souter observed that in past cases, the government has required repeated CSRT hearings until the desired verdict is achieved. Only the right of habeas corpus contains with it, he suggested, the ultimate sanction of ordering a detainee's release.
Clement replied, in essence, that the court should not supplant the considered judgments of the other branches of government.
"It really does represent the best efforts of the political branches, both political branches, to try to balance the interest in providing the detainees in this admittedly unique situation additional process with the imperative to successfully prosecute the global war on terror," Clement said.
Justice Stephen Breyer then tried to focus on the core claim of the detainees: that they are innocent. Where in the current appeals process can a detainee make that claim?
"I'm not sure that he can make that argument," Clement said.
"If he cannot make that argument, then how does this become an equivalent to habeus, since that happens to be the arument that a large number of these 305 people would like to make?" Justice Bryer asked.
Clement reiterated the government's argument that never before in the history of warfare has a U.S. prisoner of war had a right to challenge his detention with a habeas corpus petition in the U.S. courts.
"The problem with your prisoner-of-war point is, the United States is not treating them as prisoners of war. That argument, on the government's part, is entirely circular," said Justice Souter.
Justice Alito then posed this question: "If the court holds that the DTA is not an adequate substitute for habeas, what will happen? Will these petitioners then have access to all of the procedures that normally apply in habeas proceeding under 2242? The same right to discovery, subpoena, witnesses, access to classified information, presence in court?"
"The government will certainly take the position that they are not entitled to those things," Clement said. "Presumably, the petitioners will be arguing that they are entitled to those things. And there will be difficult questions that will need to be worked out."
Clement argued that the court would be jumping the gun, as it were, if it were to rule at this point that the detainees have habeas rights. The process should be allowed to play out first, he said. That prompted this question from Justice John Paul Stevens:
"They say they have been unlawfully detained for six years from the beginning," Justice Stevens said. "And isn't that delay relevant to question whether they haven't been provided such a wonderful set of procedures?"
"Well, Justice Stevens," Clement replied, "I think the delay is going to be relevant in whether or not courts should expedite hearings and the like, but I don't think it should cloud the basic constitutional question before this court."
Chief Justice Roberts tried to rescue Clement at this point, noting that the CSRT procedures were not in place until 2004.
"Habeas is supposed to be speedy," Justice Breyer countered. "And yet people have serious arguments anyway that they're being held for six years without even having those arguments heard. Is there anything, in your opinion, that this court could say by way of remedy that could get the D.C. circuit or the others to decide this and the CSRT claims, there are 305 people, to do this quickly in a matter of months rather than six more years?"
Solicitor General Clement replied that the court could instruct the lower court to expedite the appeals process. But justices Kennedy and Souter observed that under the statute passed by Congress, the Supreme Court has no jurisdiction in these cases.
"How can we say that? Justice Souter asked. "Your position is that we have no jurisdiction here. If you win, we never get to these issues."
The final argument of the day was the rebuttal from former Solicitor General Waxman. The writ of habeas corpus, he contended, has always allowed prisoners to challenge their detention if they claim they are not warriors and are being wrongly held. The current system, he argued, does not allow for such an argument.
To illustrate his point, Waxman pointed to a case in which he said a detainee was finally released after four years in detention because the detainee, a German man, had "what other detainees have not had — a lawyer." And when the lawyer filed a habeas petition in the federal courts, and the government filed a reply with its evidence, the lawyer saw that the government claimed the detainee had associated with a named terrorist who had blown himself up.
"Within 24 hours, his counsel had affidavits not only from the German prosecuter, but from the supposedly deceased Mr. Bilgen, who is a resident of Dresden, never involved in terrorism, and fully getting on with his life," Waxman said.
That evidence would not have been allowed under the CSRT hearing and appeals process, Waxman said, and that's why the process is inadequate.
The justices appeared to be split 4-4, with Justice Kennedy holding the tie-breaking vote.
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