Image: Guanatamco Bay U.S. Naval Base in Cuba.
Brennan Linsley  /  ASSOCIATED PRESS
A detainee at the detention facility at the Guantanamo Naval Base in Cuba.
By Tom Curry National affairs writer
msnbc.com
updated 12/5/2007 3:51:43 PM ET 2007-12-05T20:51:43

Wednesday morning’s clash before the United States Supreme Court essentially hinged on one question: Are the procedures for judicial review which Congress provided for Guantanamo detainees good enough?

Last year’s Military Commissions Act, or MCA, set those standards.

What the high court must determine is whether or not those MCA procedures are an adequate alternative to the writ of habeas corpus which allows prisoners to get a court hearing to challenge their detention.

Solicitor General Paul Clement tried to convince the justices the MCA is in fact good enough.

The laws passed by Congress to handle the Guantanamo detainees “represent the best efforts of both political branches to try to balance the interests” of the detainees “in this admittedly unique situation” against “the imperative to successfully prosecuting the global war on terror.”

Better rights than they ever had before?
In a colloquy with Justice Stephen Breyer, Clement later added, “Congress here has spoken; the political branches have spoken... and (the MCA) has given these detainees better rights and access to administrative and judicial review” than enemy prisoners ever had before.

The plaintiffs Wednesday were Lakhdar Boumediene and other detainees.

According to their lawyers, Boumediene and his fellow plaintiffs are Algerians who lived in Bosnia, were arrested by Bosnian police in 2001, and were turned over to U.S. custody. They claim they are not terrorists.

Slideshow: Inside Guantanamo The lawyer for Boumediene and the other detainees, Seth Waxman, who served as solicitor general in the Clinton administration, said, “This is a particularly easy, straightforward case” because the court already ruled in the 2004 Rasul decision that Guantanamo is under the control of the United States, therefore the prisoners there ought to have habeas rights.

He even said at one point that military prisoners held in Germany might be eligible for a writ of habeas corpus — which if the court agreed, would overturn its 1950 Eisentrager decision.

The detainees must have a right to present evidence of their not being enemy combatants, and the government ought not to be allowed to use secret evidence that it showed only to the judge and not to detainees.

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Congress created Combatant Status Review Tribunals (CSRTs), or panels of military officers, to determine whether each person at Guantanamo is in fact a terrorist threat.

The decisions of the CSTRs can be appealed to the federal appeals court for the District of Columbia Circuit in Washington and then to the Supreme Court.

Kennedy's crucial role
Why couldn’t all the scrimmaging be done in the CSRTs, wondered Justice Anthony Kennedy, who seemed to be leaning toward the Bush administration's stance with that question.

Because the CSRTs are flawed, Waxman said, and for detainees who have been held for six years, “the time for experimentation is over. We have tried and true established procedures,” meaning habeas hearings.

In one sense it seemed simple: was the review procedure ordered by the MCA adequate?

But if you were sitting in the courtroom hearing the arguments, unless you were steeped in old English cases such as the Case of Three Spanish Sailors, from 1779, you were soon utterly lost.

Clement spend many minutes of his presentation wrestling rhetorically with Justice David Souter over that arcane and antiquarian bit of English law.

Did the court in London back in 1779 hold what amounted to a habeas corpus hearing for the three Spanish prisoners of war who were challenging their detention?

Or had the court given the Spanish sailors a sort of cursory judgment without a hearing?

English legal history junkies
Both Souter and Clement are 18th century English legal history junkies of a kind only seen at either Oxford University, where Souter spent two years as a Rhodes Scholar, or at Cambridge University, where Clement got his master’s degree in economics.

For his part, Waxman spent long stretches battling with Justice Antonin Scalia over a 1960 English case called Ex parte Mwenya, which had to do with whether the writ of habeas corpus fully applied to the British Protectorate of Northern Rhodesia.

At one point Souter and Justice Ruth Bader Ginsburg complained that the court had already decided this territorial kind of situation in the 2004 Rasul decision — and had ruled against the Bush administration.

But Scalia wasn’t willing to let the Rasul decision rest soundly.

He pounded away at Waxman, snapping, “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?”

Waxman said the answer was a “resounding yes,” but Scalia disputed every case Waxman offered.

“Mwenya involved an English subject, not an alien” Scalia said, calling the case “totally irrelevant.”

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.

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