Quick Reactions to Boumediene Oral Argument
Both Paul Clement and Seth Waxman were superlative — two of the best at their very best.
The key to the case, I think, was a question of Justice Kennedy’s about three-quarters of the way through, in the SG’s argument (it’ll be obvious on the tape and in the transcript), wondering why the D.C. Circuit could not adequately handle some of the trickier problems that the petitioners had raised, such as whether the government’s definition of “enemy combatant” is consistent with the AUMF and Constitution. Justice Kennedy referred, in particular, to the provision of the DTA stating that, “to the extent the Constitution and laws of the United States are applicable,” the court of appeals may determine “whether the use of [the CSRT's] standards and procedures to make the [detention] determination is consistent with the Constitution and laws of the United States.” DTA § 1005(e)(2)(C). (The Solicitor General strongly implied on several occasions that to the extent the Court thinks the MCA/DTA procedure is inadequate, the Court could construe the statute to permit the D.C. Circuit the power to deal with the shortfall, e.g., to order release of a petitioner rather than simply remand to the CSRT).
Part of the answer to Justice Kennedy’s question is simply “six years” (the phrase most often invoked in today’s argument). That’s how long these detainees have been held, and the Court obviously sees the potential prospect of a substantially longer delay if the government is given the opportunity to litigate each of these other difficult issues in the D.C. Circuit.
More importantly, Seth Waxman in rebuttal seized on Justice Kennedy’s critical question, and, in my humble opinion, gave one of the more powerful and effective rebuttals I’ve ever seen — one that addresses not only Justice Kennedy’s question, but also goes to the heart of why, at least for these detainees (if not, perhaps for any future detainees, who might be the beneficiaries of a revamped system), this system of indefinite detention is fatally flawed. Listen for it.
[Disclosure: I consulted on the Boumediene briefs and argument.]
More importantly, Seth Waxman in rebuttal seized on Justice Kennedy’s critical question, and, in my humble opinion, gave one of the more powerful and effective rebuttals I’ve ever seen — one that addresses not only Justice Kennedy’s question, but also goes to the heart of why, at least for these detainees (if not, perhaps for any future detainees, who might be the beneficiaries of a revamped system), this system of indefinite detention is fatally flawed. Listen for it.
I thought this rebuttal was a waste of time.
Comment by Jacques MacKenzie — December 5, 2007 @ 1:09 pm
Marty, in response to Justice Kennedy’s question about DTA § 1005(e)(2)(C), didn’t the D.C. Circuit determine in Boumediene that alien detainees held at Guantanamo have no constitutional rights to assert? Justice Breyer stated in the original denial of cert that “It is unreasonable to suggest that the D. C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the Circuit has already concluded they do not have.” So unless SCOTUS reverses that determination, and provides guidance to the Circuit Court (perhaps by adopting Justice Harlan’s “impractical and anomalous standard”), waiting to see how the DTA litigation plays out will not bring any clarity to the constitutional issues.
Comment by David Lachman — December 5, 2007 @ 1:38 pm
I agree that Kennedy’s question was the key, but to me it indicates he sees the law as providing adequate protection of detainee ‘rights’, such as they are, in the lower court proceedings as outlined by the law.
The Bush administration will win this one.
Comment by Stephen Jaros — December 5, 2007 @ 5:39 pm
Does anyone know what Justice Breyer meant by “Beckawannaland” ?
“But let’s image in England you had a statute and that statute said the government cannot hold an alien in Beckawannaland for six years without either charging them or releasing them.”
[page 47 of the transcript]
Comment by Adam Pollock — December 6, 2007 @ 3:52 am
Bechuanaland was a British colony in Africa until 1966, when it became the Republic of Botswana. Justice Breyer apparently used it as a reference to a remote place, a sort of Victorian Guantanamo.
Comment by Allan Ryan — December 6, 2007 @ 10:34 am
See Rex v. Earl of Crewe, [1910] 2 K.B. 576 (Eng.) – Writ of Habeas Corpus denied in a case involving a person detained in Bechuanaland – however not on the ground that the reach of the writ did not extend there. See more generally the English/Commonwealth jurisprudence set out in the amicus brief of the Association of Commonwealth Lawyers. For the generality of common law jurisdictions, the issue is not the location of detention but whether there is a person amenable to the jurisdiction of the court who has the ability to order release.
Comment by Mourad Fleming — December 7, 2007 @ 7:01 pm