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Commentary: Can constitutional issues be finessed?

Back in April, when the Supreme Court initially refused to hear the Guantanamo Bay detainees’ challenges to their detention, Justice Anthony M. Kennedy was one of two members of the Court who wanted the prisoners to try first to get some legal relief from the D.C. Circuit Court. He apparently changed his mind (probably making a fifth vote to switch and hear the case), but now that the case has been heard by the Court, Justice Kennedy seems still to want to let the lower court try its hand at answering some serious constitutional questions about detainees’ rights. The problem is: the Court first has to face and answer — or find a clever way to finesse — some fundamental questions of judicial power: can it restore jurisdiction that Congress has taken away, and can it then order remedies that Congress has denied to the lower courts?

As the Court heard Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), allowing an extra 24 minutes beyond the hour scheduled for argument, it became clear that some of the Justices were thinking beyond the core question of whether the Constitution gives detainees any rights at all, or at least a right to challenge their detention in a federal habeas court. While the Court’s more conservative members wanted to talk about that, implying that the detainees have no such rights, most of the other Justices were moving on — assuming detainees have such rights, what remedies do they get?

It was a leap that Justice Ruth Bader Ginsburg questioned very near the beginning of the argument: “The D.C. Circuit, as I understand it, ruled that there was no access to habeas — end of case.” So, she told the detainees’ lawyer, Seth P. Waxman, the Circuit Court never examined whether Congress had provided an adequate substitute for habeas. Waxman agreed, prompting Ginsburg then to jump, herself, to remedies: “So, shouldn’t we, if we agree with you, that there is authority in the D.C. Circuit, send it back to them to make that determination whether habeas being required, there is an adequate substitute?”

It turned out that this was what most interested Justice Kennedy, who may well hold the deciding fifth vote on the outcome of these cases. He would come back to it several times. But that immediately gave rise to this question: doesn’t the Supreme Court have to first reverse the D.C. Circuit, say that the lower court was wrong in saying detainees have no constitutional rights, and then — only then — suggest ways to right that error? Once Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia had spent a good deal of their questions on that issue, it seemed to get submerged, and even U.S. Solicitor General Paul D. Clement found himself discussing — more expansively than the government has up to now in its arguments in the D.C. Circuit — what remedies might be fashioned. He even suggested, as the government has never before, that the Circuit Court could even order the release of a detainee from Guantanamo as an ultimate remedy.

Congress has passed two laws to give heightened emphasis to its desire that the detainees have no right to habeas. The Circuit Court upheld the latest of those two laws in its ruling in the Boumediened/Al Odah cases, and has started moving on to flesh out the details of the more limited substitute that Congress has provided. While that alternative process has all but stalled for the time being, it is all that the detainees are entitled to have, according to Congress, the Circuit Court, and the Bush Administration. But the adequacy of that process as a remedy does not even arise unless it is all that the detainees have — that is, unless habeas is gone. As Justice Ginsburg remarked at one point Wednesday: “You don’t need an adequate substitute for habeas because you have no right to habeas” under the habeas-stripping law at issue. But the argument frequently left the impression that, with perhaps a majority of the Court, habeas may not be gone, after all. How to say that did not seem to be as much a question before the Court as was the issue of whether to say it at all at this point.

This perception emerged most plainly while Clement was at the podium. Justice Stephen G. Breyer began by leading Clement into saying several times that the alternative procedure Congress has set up — military Combatant Status Review Tribunals to decide initially on detention, with some limited review of that in the D.C. Circuit — would not provide a forum for detainees to argue that no one in government had the authority to order their indefinite detention with no charges and no legal rights. “I don’t see anything in this CSRT provision that permits [a detainee] to make that argument,” Breyer said. Clement commented that he was not sure that a detainee can make that argument. He then launched into a defense of the adequacy of the alternative review process.

A bit later, Breyer raised the point again. “I’m back to the question of is this remedy that’s given in the statute sufficient” to allow arguments to be made on both sides of the long-term detention authority. He told Clement: “What you said was when I thought I produced an example of an instance they wanted to argue quite strongly and you said no, they couldn’t.”

Not long afterward, Justice Kennedy said: “Why can’t that question that Justice Breyer raised be reached by the Court of Appeals under the CSRT review hearings when it determines that constitutional adequacy of the standards or am I missing something?” Clement said he was “not so sure” and that he doubted that even a court hearing a habeas claim could reach such an issue. The Solicitor General, however, did tell Kennedy flatly that the Circuit Court in that process could rule on the constitutionality of the broad definition that the Pentagon gave to the phrase “enemy combatant” — a designation that must be made before a detainee may be held further in captivity. “Absolutely, Justice Kennedy,” he replied. “That would be available to them in the D.C. Circuit.”

Chief Justice Roberts also got into the discussion of the adequacy of the alternative review, saying “we don’t know what that’s going to look like yet because the D.C. Circuit hasn’t had an opportunity to rule on those.” Clement, of course, agreed. The Chief Justice was in essence supporting the notion that the D.C. Circuit should go forward under the existing process, even answering questions about the constitutional adequacy of that process.

Once more, Justice Ginsburg reminded everyone that the adequacy of the procedures was not before the Court, because the Circuit Court had found “there is no authority — period — for the D.C. Circuit to engage what is before us, applications for a writ of habeas corpus.”

But Justice Breyer was not finished with the remedy issue. Suppose, he suggested, that the Court “were to say that this is an unconstitutional suspension of the writ and that the remedy here written in the statute is not adequate in respect to many claims that might be made.” But, he went on, these detainees have been waiting for six years for a remedy that is supposed to be “speedy.” Breyer then asked: “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 within a period of months rather than six more years? And if so, what?”

First, Clement said he would rather discuss what the Court might say if the government were to win than if it were to lose. “As to that opinion, the lower courts should be instructed to with due cognizance for the fact these individuals have been detained six years and this is the process provided in order to decide whether or not that continuing custody is lawful, they should expedite this to the greatest extent possible.”

But, Justice Kennedy intervened, returning to the underlying constitutional issue that was being so routinely assumed rather than discussed, said: “How can we say that when your position is we have no jurisdiction here?” And Justice David H. Souter chimed in: “If you win, we never get to these issues [of the adequacy of the remedy provided by Congress].” The Solicitor General said that the Court would “still say everything…” He did not get to finish, because Justice Kennedy commented saracastically: ” ‘Have a nice day everybody?’ ” And Souter added: “You don’t win without reversing the Court of Appeals….If we affirmed on alternative grounds…these interesting questions that you referred to will never arise.” Clement disagreed, saying the Circuit Court was already moving on to the larger constitutional questions. Souter was not persuaded: “At the end of the day, the only thing as I understand it that could possibly be adjudicated would be the question of formal adherence [by CSRTs] to procedure or not. There would never be an adjudication that ever went to the merits…of relief” because the Circuit Court had already determined it had no jurisdiction.

Finally, Clement conceded to Justice John Paul Stevens that he may have misspoken in suggesting that the D.C. Crcuit would be able to explore all of the questions of the constitutional adequacy of the CSRT process.

The detainees’ lawyer, Waxman, used his rebuttal mainly to challenge the adequacy of that process and of the Circuit Court’s review of CSRT detention rulings. Kennedy asked for elaboration about that issue, and Waxman went into a sharp critique of the Circuit Court’s assignment under the alternative. It will be reviewing a limited record before the CSRTs, and “has already said it will not hear any new evidence” and it must apply a presumption that the limited record before those tribunals was presumed to be correct. And he then related an example of what difference those limits made, citing evidence unearthed by a detainee’s lawyer that completely contradicted evidence before a CSRT about the detainee’s alleged tie to a supposed terrorist suicide bomber — who, in fact, is alive and was “never involved in terrorism” and was simply getting on with his life. “That’s evidence that would not have been allowed in…It wouldn’t have been in the CSRT.” And it would not come before the Circuit Court in its review. “That’s why it is inadequate,” he said, closing.

The Court is expected to decide the cases by early next summer.