Justices Hint That They'll Rule on Challenge Filed by Detainee--NYT

http://www.nytimes.com/2006/03/29/politics/29scotus.html?ei=5094&en=d2cb17d86ffda953&hp=&ex=1143694800&partner=homepage&pagewanted=print


At least five justices — Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and John Paul Stevens — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction.

It was less certain by the end of the argument how the court would then go on to resolve the merits of the case, a multipronged attack on the validity of the military commissions themselves and on their procedures. Lawyers for the former driver, a Yemeni named Salim Ahmed Hamdan who is charged with conspiracy, also argue that he cannot properly be tried before any military commission for that crime because conspiracy is not recognized as a war crime.

Solicitor General Paul D. Clement was on the defensive throughout his argument. His stolid refusal to concede that any of the government's positions, on the jurisdictional as well as ultimate questions of the case, might present even theoretical problems provoked the normally soft-spoken Justice Souter into an outburst of anger.

What appeared to trouble Justice Souter most was Mr. Clement's discussion with Justice Stevens about whether Congress's removal of the federal courts' jurisdiction to hear habeas corpus petitions from detainees at the naval base at Guantánamo Bay, Cuba, amounted to "suspending" the writ of habeas corpus.

Suspending habeas corpus is an action, limited by the Constitution to "cases of rebellion or invasion," that Congress has taken only four times in the country's history. Habeas corpus is the means by which prisoners can go to court to challenge the lawfulness of their confinement, and its suspension is historically regarded as a serious, if not drastic, step.

another exerpt....



Mr. Clement's position was that Congress had not in fact suspended habeas corpus, but that it might constitutionally have done so given "the exigencies of 9/11." Addressing Justice Stevens, the solicitor general said, "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."

Justice Souter interrupted. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied, "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States —— "

"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

:applause: "...waiving his finger ... 'Now wait a minute' ..."