But I am still puzzled why Congress can’t “absent-mindedly” suspend or abolish *statutory* habeas, at least to the same extent that it can absent-mindedly repeal or limit any other statute.

The problem with this, as I see it, is that statements by one house do not law make. Politics aside, that is a real problem.

I think Friedman’s restatement of his argument is pretty keen, but I think the Court could go narrower than that, because I doubt they want a really nasty Scalia dissent. The question is not how much they can get away with (or “little” from your political perspective, Prof. Friedman), but how much they can get away with without sacrificing the public legitimacy of the Court. The risk is not just a dissent by Scalia (who can be demonized, as Michael Isikoff’s yellow journalism has already started to do), but criticism from Congress and the President, both of which disliked the reach of Rasul. A badly reasoned opinion gives Republicans a positive forward-looking issue related to the War on Terror to run on in 2006…constraining the courts from interfering in foreign policy to the detriment of our troops. It is the potential criticism from Congress that will shape the defensive nature of the opinion and the blistering nature of the dissent, which will feature ad hominems if Scalia writes it.

In many cases, the issues are not well expressed in the questions presented, but in this case it seems that they are. The arguments of the parties and the questioning of the court did seem to focus on the two issues limned by the plaintiffs (which I divided into 3 in the last 3 paragraphs).

Perhaps I am wrong about the extent to which the Detainee Act will be out of the case, because it is a good place to begin a dissent, and this court believes its majorities should squarely address its dissents. However, as was said at argument, the core of habeas being to decide whether one has been hailed before a court or a hanging party, unless habeas is suspended then sufficient jurisdiction must remain to answer the question. So at a minimum that question has to be avoided. I think this gets 5 votes.

The question of who gets to decide the form of commissions should produce at least 5 votes against the president. The funny thing about the Detainee Act is that, while it limits judicial review of the commissions’ results and requires the submission of their procedures, it doesn’t go so far as to authorize the commissions or their procedures.

The second question presented is the heart of the decision below and has to be addressed squarely. I can’t imagine that the court marched up the hill of Rasul to march down again in Hamdan. Again I think there are 5 votes, although a number of specific questions will be postponed until after the cases have been heard.

If in the majority, Stevens will surely keep this opinion for himself and his point of view is that of the portion of the generation that fought World War II which regrets the legal consequences engendered by war hysteria, so Eisentrager will be further limited. I doubt if even the minority really sees Eisentrager as great jurisprudence.

This seems to be about as little as they can get away with. Anybody want to address this on the merits?

As I said above, that situation is certainly distinguishable from the one that Mr. Samp posits in his comment in so far as criminal convictions can be reviewed on a count-by-count basis. Nevertheless, it does provide some support for the possibility that the Court can issue an opinion on the merits of one issue while dividing evenly on another issue for which certiorari was granted.

Ohwil,
This quote — You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him — is the most taken-out-of-context quote by the media. It is an obvious reference to Ex parte Milligan/i> and it was a part of a hypothetical posed by Breyer to Clement to focus his answer. The question is whether Clement successfully distinguished this case from Ex Parte Milligan in answering the question posed, not whether you can take pieces of the question posed by Breyer out of context and make it seem like a personal disagreement with Paul Clement, who, by the way, didn’t clerk for Breyer like the other attorney did, na-na-na-na. I didn’t realize law schools graduated 4-year olds, Ohwil.

And if you listen to the oral arguments AGAIN, Ohwil, you’ll note that Kennedy doesn’t agree with Katyal that the commissions were not regularly constituted; what he does is suppose that they are and then ask further questions, e.g., (this is a paraphrase) “Let’s say they are regularly constituted, but XYZ is still true, don’t you lose anyway, and why do we have jurisdiction if XYZ is true?” Again, it’s a form of questioning, not proof of (dis)agreement. To be honest, although the TONE of Clement’s questioning was fiercer and the PACE of Katyal’s was deliberately slowed, Katyal received much harsher questions, as a matter of SUBSTANCE, as Professor Friedman’s dismissive comments suggest.

The question, then, is whether the Justices manage to bury enough of their differences to produce a majority opinion, or whether we get one of those 3-2-2-1 splits that were so common in the Rehnquist era, where the decision below is vacated, but the way forward is left to be decided another day.