Bloodless Coup

Lithwick on Yesterday's Arguments in Hamdan v. Rumsfeld

It's official. We are living in a Kafka novel. I strongly encourage you to read her whole article. But here is some of her report

One of the most dramatic moments in today's oral argument in Hamdan v. Rumsfeld comes when an uncharacteristically agitated Justice David Souter presses Solicitor General Paul Clement about whether Congress last December effectively stripped the Supreme Court of the right to hear habeas corpus claims from any of the hundreds of detainees being held at Guantanamo Bay. Clement says it's not necessary for Congress to have "consciously thought it was suspending the Writ." Perhaps the lawmakers just "stumbled on the suspension of the Writ," which would also be fine, Clement suggests.

Souter stops him, amazed. "The suspension of the Writ," the justice sputters, is the most "stupendously significant act" Congress can undertake. "Are you really saying Congress may validly suspend it inadvertently?" ...

This war is like every other war except to the extent that it differs from those other wars. We follow the laws of war except to the extent that they do not apply to us. These prisoners have all the rights to which they are entitled by law, except to the extent that we have changed the law to limit their rights.

In other words, there is almost no question for which the government cannot find a circular answer ...

"You can't have it both ways, " Souter retorts. The government can't say the president is operating under the laws of war, as recognized by Congress, and then for purposes of defining those laws, say the Geneva Conventions don't apply.

Sure it can. Clement replies that if a detainee has such a claim, he should bring it before the military courts. Even Kennedy seems alarmed now. He confesses that he's troubled by the notion of bringing challenges about the structure of the tribunal to the tribunal itself. "If a group is going to try some people, do you first have the trial and then challenge the legitimacy of the tribunal?" he asks incredulously ...

"You can't say both," chides Stevens. So this is where Clement claims that Congress could have accidentally suspended the writ, the way you might accidentally drop your eyeglasses into a punchbowl. "Wait a minute," replies Souter, and I think he's angrier than I have ever seen him. "The writ is the writ. … You're saying the writ was suspended by inadvertence!"

Later Breyer will add: "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." To which Clement's answer is the fail-safe: "This is a war."

And even as it starts to be clear that he is losing Kennedy—who asks whether Hamdan isn't "uniquely vulnerable" and thus entitled to the theoretical protection of the Geneva Conventions—Clement stands firm in his claim that the Guantanamo detainees are different from regular POWs because, well, they are ...

For today at least, it appeared that the Bush administration would not readily marshal five votes for its core legal proposition: that if you just refuse to offer answers, the questions will go away.