No Easy Answers

Wednesday, December 05, 2007

Oral Argument: Boumediene v. Bush


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 2   - - - - - - - - - - - - - - - - - x

 3   LAKHDAR BOUMEDIENE, ET                            :

 4   AL.                                               :

 5                   Petitioners                       :

 6             v.                                      :        No. 06-1195

 7   GEORGE W. BUSH, PRESIDENT                         :

 8   OF THE UNITED STATES, ET                          :

 9   AL.;                                              :

10                   and                               :

11   KHALED A. F. AL ODAH, NEXT                        :

12   FRIEND OF FAWZI KHALID                            :

13   ABDULLAH FAHAD AL ODAH,                           :

14   ET AL.,                                           :

15                  Petitioners                        :

16          v.                                         :        No. 06-1196

17   UNITED STATES, ET AL.                             :

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19                                 Washington, D.C.

20                                 Wednesday, December 5, 2007


22                    The above-entitled matter came on for oral

23   argument before the Supreme Court of the United States

24   at 10:01 a.m.


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 2   SETH P. WAXMAN, ESQ., Washington, D.C.; on behalf of

 3      the Petitioners.

 4   GEN. PAUL D. CLEMENT, ESQ., Solicitor General,

 5      Department of Justice, Washington, D.C.; on behalf of

 6      the Respondents.




















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 1                       C O N T E N T S

 2   ORAL ARGUMENT OF                                        PAGE


 4      On behalf of the Petitioners                            4


 6      On behalf of the Respondents                           32



 9      On behalf of the Petitioners                           72

















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 1                        P R O C E E D I N G S

 2                                                               (10:01 a.m.)

 3                  CHIEF JUSTICE ROBERTS:                We'll hear argument

 4   this morning in case 06-1195, Boumediene v. Bush, and

 5   case 06-1196, Al Odah v. United States.

 6                  Mr. Waxman.

 7                   ORAL ARGUMENT OF SETH W. WAXMAN

 8                    ON BEHALF OF THE PETITIONERS

 9                  MR. WAXMAN:       Mr. Chief Justice, and may it

10   please the Court:

11               The Petitioners in these cases have three

12   things in common.     First, all have been confined at

13   Guantanamo for almost six years, yet not one has ever

14   had meaningful notice of the factual grounds of

15   detention or a fair opportunity to dispute those grounds

16   before a neutral decision-maker.

17               Two, under the decision below, they have no

18   prospect of getting that opportunity.

19               And three, each maintains, as this Court

20   explained in Rasul, that he is quote "innocent of all

21   wrongdoing."    Now the government contends that these men

22   are detainable, and the facts of these 37 cases differ,

23   and it may well that be that an adjudicatory process

24   that preserves the core features of common law habeas

25   would reveal perhaps that some of these Petitioners are

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 1   lawfully detainable.     But limited DTA review of the

 2   structurally flawed CSRT process cannot provide any

 3   reliable examination of the Executive's asserted basis

 4   for detaining these Petitioners, let alone an adequate

 5   substitute for traditional habeas review.

 6               CHIEF JUSTICE ROBERTS:                I thought that we

 7   ruled in the Hamdi case that procedures quite similar to

 8   those under the DTA were adequate for American citizens?

 9               MR. WAXMAN:       Well, with respect, Mr. Chief

10   Justice, what you ruled -- as I understand what the

11   plurality held in Hamdi was that so long as there was a

12   process accompanying detention, that provided for

13   meaningful notice of the factual grounds for detention,

14   a meaningful opportunity to present evidence in response

15   to that before a neutral tribunal with the assistance of

16   counsel, that determination would certainly be entitled

17   to substantial deference by a habeas court; and we don't

18   dispute that.

19               CHIEF JUSTICE ROBERTS:                So that --

20               MR. WAXMAN:       That's not what they got.

21               CHIEF JUSTICE ROBERTS:                So our judgment in

22   this case depends upon whether we agree with you or the

23   government that the procedures available under the DTA

24   are meaningful under Hamdi?

25               MR. WAXMAN:       It -- I think your decision in

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 1   this case, the question -- the principal question we

 2   think is presented by the case is whether or not the DTA

 3   review of the CSRT procedures that occurred in this case

 4   adequately substitute for the writ of habeas corpus.

 5                  JUSTICE GINSBURG:            Mr. Waxman, how could

 6   that be, because the D.C. Circuit never got to that

 7   question?     The D.C. Circuit, as I understand it, ruled

 8   that there was no access to habeas, end of case.

 9                  So the D.C. Circuit never examined the

10   procedure under the DTA, did it?

11                 MR. WAXMAN:        No.      The district court -- the

12   two district judges sitting in habeas went to the merits

13   of the case, and Judge Green did evaluate the

14   procedures.    The D.C. Circuit held that the

15   Constitution, neither the Suspension Clause nor the Due

16   Process Clause, applies to these people.                  And therefore

17   it didn't reach the merits.              But --

18                 JUSTICE GINSBURG:             So shouldn't we, if we

19   agree with you, that there is authority in the

20   D.C. Circuit, send it back to them to make that

21   determination whether habeas being required, this is an

22   adequate substitute.

23                 MR. WAXMAN:        Well, I'm not saying that this

24   Court couldn't do that.          It certainly could do that.

25   But one of the principal -- the principal guarantee of

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 1   habeas corpus through the centuries has been a speedy --

 2   the remedy of speedy release for somebody who is

 3   unlawfully being held in executive detention.

 4               These 37 men have been held in isolation for

 5   6 years, and it is manifest on the record in this case.

 6   There's no doubt about how the CSRT has proceeded.

 7   There is little doubt about the circumscribed nature of

 8   the D.C. Circuit's review.           The D.C. Circuit has already

 9   held that the Constitution doesn't apply.

10               CHIEF JUSTICE ROBERTS:                  Your argument

11   wouldn't be any different with respect to the

12   availability of habeas if these people were held for one

13   day, would it?    We don't look at the length of detention

14   in deciding whether habeas is available, do we?

15               MR. WAXMAN:         Well, I want to give a

16   qualified disagreement with your hypothetical, because

17   it's entirely clear that, as I think members of this

18   Court have indicated and that habeas traditionally

19   indicates, there may be military exigencies, there may

20   be a limited time period in which it is inappropriate

21   for a habeas court to rule.             And moreover -- if there --

22               CHIEF JUSTICE ROBERTS:                  Well, let me just

23   stop you there.   Do you want this Court to rule on

24   whether or not there are military exigencies that

25   require the holding and detention of these enemy

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 1   combatants?

 2                 MR. WAXMAN:       No, what I was referring to

 3   were sort of the hypothetical of battlefield -- somebody

 4   is captured -- you know -- and the next day or the next

 5   week from the battlefield, does he or she have the right

 6   to -- does a habeas court have constitutional

 7   jurisdiction.    Putting aside-

 8                 CHIEF JUSTICE ROBERTS:                Putting aside the

 9   battlefield hypothetical, we're talking about

10   Guantanamo.    Your argument is that somebody held one day

11   in Guantanamo has the right to habeas.                   So the extent of

12   detention is irrelevant to your assertion.

13                 MR. WAXMAN:       I don't think so, with respect.

14   I think -- I don't think -- I think it is appropriate

15   for a habeas -- if the Executive says we have detained

16   this person, we believe this person is an enemy

17   combatant who may be lawfully detained under the AUMF,

18   we have an administrative process that is fair, that

19   will -- that will determine the facts.                   You should stay

20   your hand to allow that procedure to occur.                  Of course,

21   that is appropriate, so long as the procedure is

22   meaningful and speedy.        That's what we do in immigration

23   cases.

24                 JUSTICE GINSBURG:            But your basic position

25   has to rest on Guantanamo Bay being just like if we had

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 1   the detainees in, say, the Everglades.                    But do you

 2   concede that if these people had never been brought to

 3   the United States, if the facility were in, say,

 4   Germany, that these detainees would have no access to

 5   habeas, no access to our courts?

 6               MR. WAXMAN:          I wouldn't agree with that for

 7   two reasons.   First of all, I think these people are in

 8   a place that is even -- that is under even more complete

 9   control and jurisdiction of our national Executive than

10   they would be in the Everglades, because there are no

11   Federalism constraints here.              Our national government

12   supplies the only law.

13               And if they were detained in Germany, the

14   question would be A, are they being detained by the

15   United States or by some multinational coalition force

16   as was the case, for example, in Hirota.

17               B, are there other laws, or can they invoke

18   the jurisdiction of another court?                   And the answer to

19   that question would depend upon the terms of our --

20               JUSTICE SCALIA:              Who says that -- let's

21   consider first the basis on which the court of appeals

22   decided this case.

23               They decided it -- in Rasul, we had held

24   that the habeas statute extended to Guantanamo, and that

25   those people who had filed their suits before the

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 1   statute, at least, could bring a suit.

 2                 Congress acted.           And enacted a new habeas

 3   statute which makes it very clear that the habeas

 4   statute, at least, does not apply to these people in

 5   Guantanamo.

 6                 Your assertion here is that there is a

 7   common law constitutional right of habeas corpus that

 8   does not depend upon any statute.

 9                 Do you have a single case in the 220 years

10   of our country or, for that matter, in the five

11   centuries of the English empire in which habeas was

12   granted to an alien in a territory that was not under

13   the sovereign control of either the United States or

14   England.

15                 MR. WAXMAN:       The answer to that is a

16   resounding yes.

17                 JUSTICE SCALIA:           What is -- what are they?

18                 MR. WAXMAN:       They are the cases that were

19   discussed and cited by the majority opinion in Rasul,

20   and we have -- we have added other ones to them, but

21   it's showing --

22                 JUSTICE SCALIA:           What cases -- what case in

23   particular do you think in Rasul?

24                 MR. WAXMAN:       I think the opinion of two of

25   the three law lords in the Earl of Crewe, which the

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 1   majority cited as In re Sekgome.              It is certain -- the

 2   government concedes it was the case in Mwenya.              It was

 3   true in the Indian cases.         And, in fact, as we point out

 4   --

 5               JUSTICE SCALIA:           Mwenya involved an English

 6   -- an English subject, not an alien.

 7               MR. WAXMAN:       Indeed, it did.

 8               JUSTICE SCALIA:           The question there is an

 9   alien.

10               MR. WAXMAN:       Indeed, it did, and the

11   government --

12               JUSTICE SCALIA:           So it's totally irrelevant.

13               MR. WAXMAN:       Well, no -- let me take a shot

14   at convincing you that it's not totally irrelevant.             The

15   Crown Counsel in that case, in his brief, stated

16   forthrightly that subjecthood or citizenship didn't

17   matter and, in fact, in the very minority opinion that

18   the government relies on in its brief here in Earl of

19   Crewe, Lord Justice Kennedy specifically said that the

20   citizenship is irrelevant.         It isn't and wasn't --

21               JUSTICE SCALIA:           In both of those cases, it

22   was a citizen, nonetheless.           In 220 years of our

23   history, or five centuries of the -- do you have a

24   single case in which it was not a citizen of England or

25   a citizen of the United States in which a common-law

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 1   writ of habeas corpus issued to a piece of land that was

 2   not within the sovereign jurisdiction?

 3               MR. WAXMAN:         Well, the Court majority in

 4   Rasul cites a case involving the Isle of Jersey, the

 5   Channel Islands.    None of those were within the

 6   sovereign courts'    --

 7               JUSTICE SCALIA:             They were not regarded as

 8   part of the crown's dominion, but they were part of the

 9   crown's sovereign territory.

10               MR. WAXMAN:         I'll take one more chance,

11   Justice Scalia.

12               JUSTICE SCALIA:             Okay, try them.      I mean,

13   line them up.

14               (Laughter.)

15               MR. WAXMAN:         Okay.        Here they go.    In the

16   Indian cases -- I mean, first of all, let's say that

17   citizenship was not a notion at common law.               The

18   question was subjecthood, and subjecthood was a very

19   ill-defined term that had no fixed parameters, as our

20   reply brief points out.

21               Certainly many of the petitioners in the

22   Indian cases that we cited -- and in fact that Sir John

23   Chambers decided -- were not Englishmen or people who

24   would have been otherwise considered --

25               JUSTICE SCALIA:             And the cases were decided

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 1   under a statute that applied in India, not under --

 2   under the common law.

 3               And the writ did not come from England; the

 4   writ came from English courts in India under a statute.

 5   And we decided that in Rasul.             I mean, you want to do

 6   that in Rasul, that's fine.            But you are appealing to a

 7   common law right that somehow found its way into our

 8   constitution without, as far as I can discern, a single

 9   case in which the writ ever to a non-citizen.

10               MR. WAXMAN:        Justice Scalia, as Lord

11   Mansfield explained in the King v. Cowle, and both sides

12   are citing to it -- even if the writ -- even with

13   respect to the persons detained outside the English

14   realm, the relevant question was, is this person under

15   the subjection of the crown?            Not what is the

16   subjecthood or citizenship of this person?                 And in fact

17   --

18               CHIEF JUSTICE ROBERTS:                 What is the

19   relevance to your -- this line of reasoning to the

20   recent enactment by Congress of section 1005(g), which

21   says that the base at Guantanamo is not part of the

22   United States?   There is a judgment by the political

23   branches that we don't exercise sovereignty over the

24   leasehold, and it seems to me that, if we're going to

25   adhere to our habeas corpus cases, we would have to

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 1   reject that determination.

 2                 MR. WAXMAN:       Mr. Chief Justice, let me

 3   answer that question directly and then if I may finish

 4   my answer to Justice Scalia.

 5                 We don't contend that the United States

 6   exercises sovereignty over Guantanamo Bay.                Our

 7   contention is that at common law, sovereignty (a) wasn't

 8   the test, as Lord Mansfield explained, and (b) wasn't a

 9   clear-cut determine -- there weren't clear-cut

10   sovereignty lines in those days.                Our case doesn't

11   depend on sovereignty.        It depends on the fact that,

12   among other things, the United States exercises --

13   quote -- "complete jurisdiction and control over this

14   base."   No other law applies.

15                If our law doesn't apply, it is a law-free

16   zone.

17                JUSTICE ALITO:          So the answer to

18   Justice Ginsburg's question, it wouldn't matter where

19   these detainees were held so long as they are under U.S.

20   control.    If they were held on a U.S. military base

21   pursuant to a standard treaty with another country, if

22   they were in Afghanistan or in Iraq, the result would be

23   the same?

24                MR. WAXMAN:        No, I think, Justice Alito, I

25   want to be as clear about this as I can be.                This is a

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 1   particularly easy straightforward case, but in another

 2   place, jurisdiction would depend on the facts and

 3   circumstances, including the nature of an agreement with

 4   the resident sovereign over who exercises control.           And

 5   I want to come back to that with the Japan and German

 6   example, because I have read the status of forces

 7   agreements there.

 8                 Secondly, even if there technically were

 9   jurisdiction, there might very well be justiciability

10   issues under the circumstances of the sort that

11   Justice Kennedy addressed in his concurrence in Rasul;

12   that is, there may be circumstances and temporal

13   conditions in which, under the separation of powers, it

14   would be a -- a court would deem it inappropriate to

15   exercise that jurisdiction.

16                 And finally, even if it were appropriate to

17   exercise the jurisdiction, the review of a habeas court

18   in the mine run of cases would be anything but plenary

19   because members of enemy armed forces and enemy aliens

20   within the meaning of the Alien Enemy Act are

21   detainable.   Period.      Now, with respect to --

22                 JUSTICE ALITO:         What if, in a future war,

23   many of the soldiers and the opposing Army don't wear

24   uniforms?   What if it's a war like Vietnam and thousands

25   of prisoners are taken into custody and they are brought

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 1   to prisoner-of-war camps in the United States as

 2   occurred during World War II?              Every one of them under

 3   your theory could file a habeas petition.                  Is that

 4   right?

 5                 MR. WAXMAN:       Well, if they were in the

 6   United States, I think it's clear that they could file a

 7   habeas petition.    And, you know, the question about how

 8   Guantanamo relates to that is for this Court.                  What's

 9   material is that -- I mean we cited to the Court the

10   Army directives and the Army procedures implementing

11   Article V of the Geneva Conventions that were used in

12   Vietnam, which is the only other war we engaged in that

13   had combatants who weren't in uniforms.                  They not only

14   had a hearing that was near the time and near the place

15   of capture and the right to call witnesses; there's no

16   evidence that classified information was withheld from

17   them.    And they not only had a right to counsel; the

18   government provided them counsel, somebody who was their

19   advocate.

20                Now, once a determination like that is made,

21   they may -- if they're detained in the United States --

22   they may file a habeas petition and the response will be

23   there is absolutely no reason not to defer to the

24   adjudication of that tribunal.               You have, as I started

25   with the Chief Justice, you had a fair notice of the

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 1   facts, a fair opportunity to challenge them with the

 2   assistance of counsel before a neutral decisionmaker.

 3               CHIEF JUSTICE ROBERTS:                  So to determine

 4   whether there's jurisdiction, in every case we have to

 5   go through a multi factor analysis to determine if the

 6   United States exercises not sovereignty, which you've

 7   rejected as the touchstone, but sufficient control over

 8   a particular military base?             Over the Philippines during

 9   World War II, in Vietnam, and it is going to decide in

10   some cases whether the control is sufficient and others

11   whether it isn't?

12               MR. WAXMAN:         Well, I don't --

13               CHIEF JUSTICE ROBERTS:                  And that is a

14   judgment we the Court would make, not the political

15   branches who have to deal with the competing

16   sovereignties in those situations?

17               MR. WAXMAN:         You know, I think -- both sides

18   try to derive force from the fact that such claims, such

19   habeas petitions, haven't come forward in floods in the

20   past.

21               I think the reason is that, in the past, we

22   had combat in which -- you know -- I mean in a war of

23   the conventional sort, soldiers wear uniforms, and more

24   to the point, the interests of the captured soldier and

25   the command -- and the capturing officer are aligned.

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 1   The captured soldier wants to be treated as a prisoner

 2   of war or released.

 3                  The commanding general wants to release

 4   civilians who aren't in the Army or turn them over for

 5   criminal prosecution.        That's why, in the Gulf war,

 6   there were 1200 -- roughly, just a few hundred, 1200

 7   Article V field tribunal hearings that were held, of

 8   which almost 900 were released as civilian

 9   non-combatants and the remaining were detained --

10                JUSTICE SCALIA:             Counsel, we had 400,000

11   German prisoners in this country during World War II.

12   And not a -- you say it's clear in the Vietnam example

13   that the Chief Justice gave you, it's clear that habeas

14   would lie.   400,000 of these people.                     It never occurred

15   to them.

16                MR. WAXMAN:         Well, first of all, there is

17   Colepaugh --

18                JUSTICE SCALIA:             And many of them were

19   civilians, by the way, and not in uniform.                     Not a single

20   habeas petition filed.

21                MR. WAXMAN:         There's -- there are Colepaugh,

22   the Tenth Circuit case and In re: Territo, both of which

23   we discussed.    But more to the point, as I said,

24   Justice Scalia, there is no doubt that a member of the

25   German army or somebody who is assisting the German

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 1   army -- it would be totally unavailing to file a -- to

 2   file a habeas petition because they are detainable.                It

 3   would be like Mr. Ludekey in the United States v.

 4   Ludekey saying --

 5               JUSTICE SCALIA:             He claims he wasn't

 6   assisting the German army, just as these people here

 7   claim that they were not attacking U.S. bases.

 8               MR. WAXMAN:         They were provided Article V

 9   tribunals that gave them actual notice of the

10   government's facts and actual opportunity to controvert

11   it and a determination by military officers who had not

12   been told that both the commanding general of the

13   southern command and the Secretary of Defense had

14   personally reviewed the evidence and determined that

15   these were enemy combatants; and a habeas court would

16   simply dismiss.

17               And a habeas court could simply say whether

18   we do or don't technically have jurisdiction under

19   battlefield circumstances or circumstances involving

20   foreign detainees in a zone of occupation where active

21   hostilities occur, it is inappropriate under the

22   separation of powers for us to intervene.                But these men

23   have been held, taken by the United States, thousands of

24   miles away -- in the case of my six individuals, plucked

25   from their homes, from their wives and children in

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 1   Sarajevo, detained for three months at the United States

 2   request.

 3               JUSTICE ALITO:         Your primary position is

 4   that we should order that they be released, is that

 5   correct?

 6               MR. WAXMAN:       Well, we've asked that they be

 7   granted habeas relief.      We think what that means is that

 8   they should be -- the cases should be returned to the

 9   district courts where their cases are proceeding.           The

10   government has filed its factual returns to the writ.

11   Judge Green, in the cases pending before her, has

12   established procedures to protect the --

13               JUSTICE KENNEDY:           Suppose there had not been

14   a six-year wait, would it be appropriate then for us

15   to -- if you prevail -- remand the case to the habeas

16   court and instruct the habeas court to defer until the

17   Court of Appeals for the District of Columbia has

18   finished the DTA review proceedings?

19               MR. WAXMAN:       I would argue that the answer

20   is no for two reasons.      The one because there is no

21   prospect, no prospect that the DTA proceedings will be

22   conducted with alacrity or certainty; and second of

23   all --

24               JUSTICE KENNEDY:           Why should I assume that

25   the district court in Washington would be any faster

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 1   than the court of appeals?

 2                  MR. WAXMAN:       Here's -- the -- the -- let's

 3   take the cases in front of Judge Green.                     Judge Leon in

 4   the cases of my client just granted the government's

 5   motion to dismiss.      But in all of the cases the

 6   government has filed its factual return under the

 7   procedures, under the long-established habeas procedures

 8   under 2243.     It is -- the burden is now on us.                  She has

 9   already ruled that with respect to secret information or

10   classified information, here are the safeguards that

11   will govern, here's how we will work.                     And it is simply

12   on us now to adduce and present evidence to try and

13   over -- to try to shoulder the burden we have.

14                 In the court of appeals, Justice Kennedy,

15   the government, after two years, has not produced the

16   record on review in a single case.                   It has now said --

17   two years.    It has now said that it cannot do so, and

18   the court of appeals has suggested that what the

19   government ought to do is hold entirely new CSRT

20   proceedings.

21                 Now, those proceedings are structurally

22   flawed.   Perhaps this Court could say, look, here's how

23   it's going to be.     First of all, the Constitution does

24   apply.    Second of all, we have to have a hearing in

25   which the following things occur.

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 1                We either in the Court of Appeals under the

 2   All Writs Act or under 28 USC Section 2347C -- the

 3   Petitioners have to have the right to adduce and present

 4   evidence to controvert the government's return which

 5   was -- almost all of the government's evidence was

 6   introduced ex parte, in camera, and with a -- to boot

 7   with a presumption that it is accurate and genuine.

 8                JUSTICE KENNEDY:           Why can't that take place

 9   in the CSRT review proceedings that are pending?

10               MR. WAXMAN:        Well, I don't -- it could if

11   the military had different procedures to govern the

12   CSRTs.   And our submission is that with respect to these

13   Petitioners, you've asked to hold aside the six years.

14   I would say with respect to future detainees, that this

15   Court could issue a ruling -- well, this Court should

16   issue a ruling saying for these people if the writ means

17   anything, the time for experimentation is over.                  We have

18   tried and true established procedures.                  We've got

19   experienced district judges including a judge who was

20   the chief judge in the FISA court, who's already

21   established the rules for maintaining confidentiality of

22   classified information.

23               But we are not as a Court saying that there

24   could not readily be an adequate substitute if the

25   administrative procedures generated by the Department of

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 1   Defense allowed for the process minimums that the Chief

 2   Justice asked me about at the beginning and advocated a

 3   standard that was authorized -- a substantive standard

 4   authorized by the AUMF.         DTA review may very well be an

 5   adequate substitute.

 6               JUSTICE SOUTER:             Is that possible for

 7   your -- let's say your six clients at this point or for

 8   any of the Guantanamo detainees, I guess, because

 9   wouldn't they all run into the problem of -- the

10   neutrality problem that you raised?                      The commanding

11   general, the Secretary of Defense, in effect, have

12   already said these people belong where they are.

13   Wouldn't that make it impossible, really, at this stage

14   of the game to substitute a military procedure?

15               MR. WAXMAN:         I certainly think so.               But at a

16   minimum, Justice Souter, you would have to have the kind

17   of tribunal that is called for under the uniform code of

18   military justice.

19               JUSTICE SOUTER:             I understand that.

20               MR. WAXMAN:         Where you don't have the

21   convening authority exercising command control over the

22   tribunal officer.

23               JUSTICE SOUTER:             I'm just wondering whether

24   assuming you win this case, that would be an appropriate

25   form of relief.   And I'm not sure --

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 1                MR. WAXMAN:         I don't think it is.           I

 2   certainly don't think it would be unless this Court

 3   clarified under the -- I don't know whether this would

 4   fall under the guise of clarification; but specify that

 5   under the circumstances, the deferential review of the

 6   D.C. Circuit in which it presumes accurate and presumes

 7   sufficient -- adequate the evidence which the tribunal

 8   itself presumed accurate would have to fall; that is, a

 9   habeas court would never accord that presumption.

10               JUSTICE SOUTER:              I have a quick question.       I

11   don't want to interfere with his five minutes of

12   rebuttal.

13               CHIEF JUSTICE ROBERTS:                   We'll give you your

14   rebuttal time.

15               JUSTICE BREYER:              Going back to

16   Justice Scalia's question on the precedent, suppose --

17   and I'm going to be -- I'd like my mind to be clear on

18   this.   I thought that the question asked was for you to

19   find an instance where there was no sovereignty of the

20   country and they issued the writ, and it was turning on

21   a technical thing.      Whether that was how the question

22   was met or not, what I read here in these different

23   briefs is in 1759, Lord Mansfield, the case can issue --

24   a writ of habeas corpus, no doubt the power could issue

25   it where the place is under the subjection of the crown

                           Alderson Reporting Company
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 1   of England.    Then Lord Sellers in Mwenya said subjection

 2   is fully appropriate to the powers, that's habeas,

 3   irrespective of territorial sovereignty or dominion, in

 4   other words, non-technical.

 5                 In our case in Rasul, both the concurring

 6   opinion and the majority opinion say things like the

 7   reach of the writ depends not on formal notions of

 8   territorial sovereignty, but on the practical questions.

 9   Then they both list practical questions.

10                 Now suppose we take that as the definition.

11   Now, can you find instances where the writ has been

12   issued by Britain in history to people who were not

13   citizens and who were not actually held in Britain?

14                 MR. WAXMAN:       Yes.

15                 JUSTICE BREYER:           They are --

16                 MR. WAXMAN:       I will cite two examples.   I

17   knew that there was one other thing I wanted to try on

18   Justice Scalia.   One is -- and it's referenced in our

19   footnote -- you know, in 1777 and 1783, Parliament

20   suspended the privilege of the writ of habeas corpus for

21   people on the high seas or out of the realm,

22   specifically directed at U.S. seamen, at American

23   seamen.   And if the writ never extended to American

24   seamen on the high seas or out of the realm, there would

25   have been no point in suspending it.

                          Alderson Reporting Company
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 1                   Second of all, the common -- the high

 2   court judges who were administering -- issuing the writ

 3   for the benefit of detainees in India before it became a

 4   sovereign possession were not exercising a statutory

 5   authority, with all due respect to Justice Scalia.

 6                   There was a royal charter that granted

 7   those judges the -- all of the common -- the

 8   authority -- common law authorities of the Queen's

 9   bench.

10                   And as the Indian case law explicates,

11   and Sir John Chambers explains, one of those authorities

12   was the exercise of the writ of habeas corpus, not

13   mandamus, outside territories that were no part of the

14   Realm of England.

15                   Those are the, I think -- I mean there

16   may be be something in --

17               JUSTICE BREYER:             The Spanish doctor, the

18   Swedish doctor, the Spanish sailors, the British spy,

19   they're all in this case.

20               MR. WAXMAN:         Well, in this -- in this

21   country, In Re Felateau, which was decided only a few

22   years after the founding, not only was he an enemy

23   alien; he was granted release under the writ of habeas

24   corpus because, not being a citizen, he could not be

25   charged with treason, which was the basis for holding

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 1   him.

 2                JUSTICE SCALIA:            Where -- where was he held?

 3                MR. WAXMAN:        I think in Pennsylvania.             Maybe

 4   it was --

 5                JUSTICE SCALIA:            Are you sure he was being

 6   held in Pennsylvania?

 7                MR. WAXMAN:        It was the mid-Atlantic.

 8   Excuse me?

 9                JUSTICE SCALIA:            I mean, you're being held

10   within the jurisdiction of the United States.                 I am

11   still waiting for a single case, other than the Indian

12   case which you mentioned which was under a statute, a

13   single case in which an alien that -- in a -- in a

14   territory not within the Crown, was granted habeas

15   corpus.

16                And it's not enough to say there was a

17   statute that applied on the seas.                 That's fine.   Just

18   give me one case.    There's not a single one in all of

19   this lengthy history.

20                MR. WAXMAN:        Well, Justice Scalia, you're

21   asking me to discard the Indian cases, and I've -- I've

22   mentioned to you the cases that the majority of Indians

23   in Rasul relied on, the Earl of Crewe and Mwenya.                  I've

24   given you the two statutes.             I think at this point I

25   have to plead exhaustion from remedies.

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 1                (Laughter.)

 2                CHIEF JUSTICE ROBERTS:                  Mr. Waxman, this

 3   determination, whether it's sovereignty or subjugation

 4   or control of non-sovereign territory, would, I expect,

 5   have diplomatic consequences.               It is, I think, typically

 6   an act of war for one country to assert authority and

 7   control over another country's jurisdiction.

 8                And here we have Section 1005G where

 9   Congress and the President have agreed that Guantanamo

10   Bay is not part of the United States, and, yet, you

11   would have this Court issue a ruling saying that it is

12   subject to the total, complete domination and control,

13   or whatever the factors are.

14                What is the reaction of the Cuban government

15   to be to that?

16                MR. WAXMAN:         My -- I don't think it's in the

17   record here, but what is in the record are the terms of

18   the lease.   And I don't really take it to be disputed

19   that Guantanamo is under the complete, utterly

20   exclusive, jurisdiction and control of the national

21   government of the United States.

22                That's in the lease, itself.                 The courts of

23   Cuba have so held.      They have designated Guantanamo,

24   quote, "foreign territory" unless and until the United

25   States in its sole discretion chooses to vacate the

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 1   base.     And --

 2                  CHIEF JUSTICE ROBERTS:                We -- there are --

 3   am I wrong that there are Cuban workers who come on to

 4   the base and work?

 5                  MR. WAXMAN:       I'm not sure whether there are,

 6   or not, any longer.       But unlike -- or if you take --

 7   they are not subject -- and it has never been contended

 8   that they are subject -- to Cuban control with respect

 9   to conduct that is subject to any law of the United

10   States.

11                 CHIEF JUSTICE ROBERTS:                 So if you have two

12   of those workers and they get into a fight over

13   something, one can't sue the other in Cuban courts?

14                 MR. WAXMAN:        Absolutely not, and this is the

15   key difference, I think, going to Justice Alito's

16   question.    Under our established --

17                 CHIEF JUSTICE ROBERTS:                 What authority --

18   what authority do you have for that:                      That such a suit

19   would not lie in the Cuban court?

20                 MR. WAXMAN:        Well, first of all, the terms

21   of the lease, and, second of all, I -- I don't know that

22   we cited -- I mean, somebody has cited decisions of the

23   Cuban Government, the judiciary and its executive, that

24   they don't exercise any jurisdiction over --

25                 JUSTICE STEVENS:            The converse question is:

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 1   Could we prosecute a crime committed in Guantanamo by

 2   Cubans?     And the answer is yes.

 3                  MR. WAXMAN:       The answer is certainly yes,

 4   and if I can just make the point about bases elsewhere,

 5   in Germany and Japan, for example, the status of -- this

 6   is the only base, I believe, that -- you know, in

 7   something other than an active war zone, that isn't the

 8   subject of a status-of-forces agreement that very

 9   specifically explicates both the judicial and executive

10   authority over acts that occur on the base.

11                 And, for example, under our status-of-forces

12   agreement with Japan, it is entirely clear that if it is

13   a Japanese citizen or a Japanese national or conduct

14   that is subject to the laws of Japan, the Japanese

15   courts have jurisdiction.

16                 JUSTICE KENNEDY:            You're not heartened by

17   the prospect that the detainees could apply to the Cuban

18   courts, which would then hand process to the Commanding

19   General at Guantanamo?

20                 (Laughter.)

21                 MR. WAXMAN:        Not particularly.        Let's put it

22   this way:    It has not occurred to us yet.

23                 (Laughter).

24                 MR. WAXMAN:        I mean, this is in -- this is

25   in many respects a uniquely straightforward case.               I

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 1   really didn't mean to be facetious when I said our

 2   national control over Guantanamo is greater than it is

 3   over a place in Kentucky, because there we have -- under

 4   our system of federalism the Federal Government has

 5   limited controls.

 6                 JUSTICE GINSBURG:            I thought this was

 7   decided in Rasul.    That's why I am so puzzled by the

 8   Government's position.        I think Justice Kennedy said it

 9   most clearly when he said that, well, in every practical

10   respect, Guantanamo Bay is U.S. territory; and whatever

11   Congress recently passed, they can't, as you pointed

12   out, change the terms of the lease.

13                 MR. WAXMAN:       Yes.       I think that's right, and

14   I also think that, although it is correct, as

15   Justice Scalia pointed out at the outset, that the

16   decision in Rasul was a decision about the scope of

17   2241, which has now been amended, and the majority, at

18   least, rendered a decision on the basis of the statute,

19   nonetheless, the Court was construing 2241(c)(1), which

20   is in haec verba with Section 14 of the 1789 act.

21                 There are other provisions of the habeas

22   statute like the civil war provisions that -- under

23   which this Court reviews State court convictions and

24   detentions.   But the statute that this Court was

25   construing in Rasul was identical in language to the one

                          Alderson Reporting Company
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 1   promulgated in the -- the very first judiciary act of

 2   1789, which this Court has said in Bollman was an

 3   instantiation, a positive enactment of the writ, that

 4   was protected by the Constitution.

 5                 And so, while technically, the majority was

 6   issuing a statutory ruling -- and we don't contend

 7   otherwise -- inferentially, its conclusion must extend

 8   to the -- the extent of the writ at common law.

 9                 Thank you.

10                 CHIEF JUSTICE ROBERTS:                Thank you,

11   Mr. Waxman.   We will give you five minutes for rebuttal.

12                 General Clement.


14                    ON BEHALF OF RESPONDENT

15                 GENERAL CLEMENT:           Mr. Chief Justice, and may

16   it please the Court:

17                 Since this Court's decision in Rasul,

18   Petitioners' status has been reviewed by a tribunal

19   modeled on Army Regulation 190-8, and Congress has

20   passed two statutes addressing Petitioners' rights.

21                 Petitioners now have access to the Article

22   III courts and have a right to judicial review in the

23   D.C. Circuit.

24                 That review encompasses preponderance

25   claims, claims that the military did not follow their

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 1   own regulations, and statutory and constitutional

 2   claims.

 3               JUSTICE STEVENS:           General Clement, you said

 4   it was modeled after 190-8.           Is it identical to 190-8?

 5               GENERAL CLEMENT:           Justice Stevens, it is

 6   virtually identical.     If you look at pages 50 and 51 of

 7   our brief, you'll see kind of a side-by-side comparison;

 8   and the deviations are ones that, we would submit,

 9   enhance the rights of the detainees in this particular

10   circumstance.

11               So they are given a right to a personal

12   representative, which is not something that Army

13   Regulation 190-8 provides.         They are specifically

14   provided for the ability to submit documentary evidence.

15               JUSTICE STEVENS:           How is that personal

16   representative chosen?

17               GENERAL CLEMENT:           The personal

18   representative is assigned to the individual by the

19   military.

20               JUSTICE SOUTER:           I mean is that personal

21   representative also under an obligation to report back

22   to the military anything that might be unfavorable to

23   the person he is supposedly representing?

24               GENERAL CLEMENT:           Well, I don't know about

25   "unfavorable," but I think if there's -- certainly, if

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 1   there is material intelligence information, he is to

 2   provide that information.

 3               JUSTICE SOUTER:            So he's not -- he is not in

 4   the position of counsel, as we understand the term.

 5               GENERAL CLEMENT:            No.      We are not trying to

 6   make the point that the personal representative is a

 7   counsel.   We're just saying it is something that is

 8   provided above and beyond 190-8 in terms of the

 9   procedure; and there are other particulars as well, like

10   there is the notice of the charges in the unclassified

11   summaries that are provided.

12               Now, there's the complaint on the other side

13   that the unclassified summaries aren't particular

14   enough, but it is worth noting that that's something

15   that is provided here that's not specified by 190-8.

16               JUSTICE STEVENS:            Under 190-8, does the

17   defendant have a right to counsel?

18               GENERAL CLEMENT:            No, they do not, not under

19   the basic regulations of that.              Now, Mr. Waxman

20   correctly indicated that in a particular instance in

21   Vietnam, counsel was provided in 190-8 proceedings, but

22   those are not provided by the basic 190-8 procedures.

23   And, I think it is worth --

24               CHIEF JUSTICE ROBERTS:                 The DTA, see, is

25   unclear to me, anyway, on this question.                 You agree that

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 1   there is the authority under the DTA, and I assume under

 2   the Court of Appeals for the D.C. Circuit in reviewing

 3   those determinations, to order a release?

 4               GENERAL CLEMENT:           Well, I -- the way I would

 5   answer that, Mr. Chief Justice, is this:                In terms, the

 6   DTA does not provide for an order of release.                And we

 7   would certainly have taken the position that, as a first

 8   order, if the D.C. Circuit finds a defect in the CSTR,

 9   we think the proper remedy would be to order a remand

10   for a new CSTR.

11               But, certainly, if this Court thinks that

12   the constitutional line is -- essentially necessitates

13   that the D.C. Circuit have the authority to order a

14   release, there is no obstacle to that.

15               CHIEF JUSTICE ROBERTS:                2243 doesn't specify

16   the availability of release, either, but it has

17   certainly been interpreted to authorize that by habeas

18   courts in this country.

19               GENERAL CLEMENT:           No.      And the D.C. Circuit

20   would have available to it the All Writs Act, and the

21   D.C. Circuit, in fact, in its Desmoula decision, which

22   is the decision where the Government has filed an en

23   banc petition -- that protective order that was issued

24   there was done pursuant to the All Writs Act.

25               CHIEF JUSTICE ROBERTS:                Yes, but that --

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 1               GENERAL CLEMENT:            The D.C. Circuit hasn't

 2   been shy about asserting that authority.                And, again, if

 3   that's what was required here, they could use that

 4   authority to order a release.

 5               JUSTICE SOUTER:            But doesn't the resort to

 6   the All Writs Act beg the question?

 7               And that is -- I mean the All Writs Act is

 8   there to protect jurisdiction, and the question is

 9   whether there is jurisdiction to release.

10               And you say there no textual impediment to

11   it; and, yet, we know -- I forget which brief it was in

12   -- from one of the briefs the -- the instance of the

13   prisoner Ali, one of the Chinese -- is it "Uigars"?                Is

14   that how it is pronounced?

15               GENERAL CLEMENT:            "Uigars."

16               JUSTICE SOUTER:            Who was one of what, 12 or

17   13, who was found not to be an enemy combatant, and the

18   Government's position there was:               Go back and do it

19   again in front of another tribunal, another panel,

20   which, in fact, conveniently found that he was.

21               So the practice of -- of the Government, it

22   seems to me, has clearly been to deny the right to

23   release.

24               GENERAL CLEMENT:            Well, I would disagree,

25   Justice Souter.   Let me say a couple of things to that.

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 1                One is that I think with respect to the

 2   Uigars, in particular, there was a problem with ordering

 3   release outright.    And it is interesting that when Judge

 4   Robertson, the same judge, district court judge, who

 5   decided the Hamdan case, had before him one of the

 6   Uigars in a habeas petition, he recognized that under

 7   habeas he couldn't order release.

 8                And the problem wasn't any kind of inherent

 9   limitation on what he could order in his jurisdiction.

10   There was just a practical problem, which was --

11               JUSTICE SOUTER:             Okay.       It was a practical

12   problem.   But the fact is that the effectiveness of

13   habeas jurisdiction, for example, in requiring new

14   trials, and so on, depends upon the ultimate sanction,

15   which is the authority of the court to let somebody go

16   if the Government does not comply with a condition.

17               And the -- the Government practice so far

18   under the DTA seems quite contrary to that.

19               GENERAL CLEMENT:             Well, again, Justice

20   Souter, what I would say is simply this:                  that if what

21   the Constitution requires to make the DTA to be an

22   adequate substitute is the power to order release, there

23   is no obstacle in the text of the DTA to that.                  And the

24   All Writs Act is available to allow them to order

25   release to protect their jurisdiction under the DTA.

                          Alderson Reporting Company
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 1   And I think that would be a solution to that problem.

 2                Now, I think, more broadly, let me -- let me

 3   say about the DTA and the MCA, it really does represent

 4   the best efforts of the political branches, both

 5   political branches, to try to balance the interest in

 6   providing the detainees in this admittedly unique

 7   situation additional process with the imperative to

 8   successfully prosecute the global war on terror.

 9                JUSTICE BREYER:            They get additional

10   process.   The question, I guess, is whether it is an

11   adequate substitute for having withdrawn the writ of

12   habeas corpus.

13               On that question, suppose that you are from

14   Bosnia, and you are held for six years in Guantanamo,

15   and the charge is that you helped Al-Qaeda, and you had

16   your hearing before the CSRT.

17               And now you go to the D.C. Circuit, and here

18   is what you say:    The CSRT is all wrong.                   Their

19   procedures are terrible.          But just for purposes of

20   argument, I concede those procedures are wonderful, and

21   I also conclude it reached a perfectly good result.

22               Okay?    So you concede it for argument's

23   sake.   But what you want to say is:                     Judge, I don't care

24   how good those procedures are.               I'm from Bosnia.        I've

25   been here six years.       The Constitution of the United

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 1   States does not give anyone the right to hold me six

 2   years in Guantanamo without either charging me or

 3   releasing me, in the absence of some special procedure

 4   in Congress for preventive detention.

 5               That's the argument I want to make.               I don't

 6   see anything in this CSRT provision that permits me to

 7   make that argument.     So I'm asking you:             Where can you

 8   make that argument?

 9               GENERAL CLEMENT:           I'm not sure that he could

10   make that argument.

11               JUSTICE BREYER:           Exactly.

12               GENERAL CLEMENT:           I'm not sure he can make

13   --

14               JUSTICE BREYER:           If he cannot make that

15   argument, how does this become an equivalent to habeas,

16   since that happens to be the argument that a large

17   number of these 305 people would like to make?

18               GENERAL CLEMENT:           Well, Justice Breyer, let

19   me take it this way, which is, of course, you're getting

20   to the gravamen of their claim, which is that the DTA

21   and the review provided in the D.C. Circuit is not an

22   adequate substitute for habeas review.

23               And I'll start with the assumption for a

24   second, which I hope is right, because it seems that

25   Judge Friendly reached this conclusion -- and it seems

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 1   to me the right conclusion --             which is that the base

 2   line is 1789.

 3                And if you compare what these detainees have

 4   under the DTA in terms of judicial review to what would

 5   have been available to them at common law in 1789, it is

 6   not even close.

 7                This is the remarkable liberalization of the

 8   writ, not some retrenchment or suspension of the writ.

 9   These detainees at common law would face not one, but

10   three obstacles, to getting into court to make these

11   claims.   The first, of course, is the geographical

12   limits on the reach of the writ.               The second, but

13   equally important, is the line of authority that says

14   that the writ was simply unavailable to prisoners of

15   war.   And the third problem would be the

16   well-established common law rule that you can't

17   controvert the facts as set forth in the return.

18               So at common law, somebody who took the

19   incredibly, I think, poor strategic call to concede all

20   of their legal arguments away and say only:               I have a

21   constitutional claim here to be brought, I don't think

22   they would have gotten into court with that.

23               JUSTICE SOUTER:            But aren't you simply

24   rearguing Rasul?

25               GENERAL CLEMENT:            Not at all --

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 1                 JUSTICE SOUTER:           We have passed that point;

 2   haven't we?

 3                 GENERAL CLEMENT:           Not at all,

 4   Justice Souter.    And, first of all -- I mean, I take it

 5   your -- your principal objection goes to the

 6   geographical writ point, because I think that the issues

 7   about controverting the facts of the return and the

 8   availability of the writs to prisoners of war is

 9   something that really wasn't -- had any reason to be

10   before this Court in Rasul.

11                 JUSTICE SOUTER:           It -- it -- it wasn't, and

12   I didn't want to get into the prisoner of war point.

13   But if you want to get into it, the problem with your

14   prisoner of war point is the United States is not

15   treating them as prisoners of war.                  They have not been

16   adjudicated prisoners of war, or otherwise, under the

17   Third Geneva Convention, and that argument on the

18   Government's part is entirely circular.

19                 GENERAL CLEMENT:           With respect, Justice

20   Souter --

21                 JUSTICE GINSBURG:            General Clement, I

22   remember in a prior hearing about Guantanamo that the

23   Government was taking the position firmly that these

24   detainees were not prisoners of war and, therefore, were

25   not entitled to the protection of the Geneva

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 1   conventions.

 2               So if the Government is maintaining that

 3   position, these people are not prisoners of war, then

 4   the treatment of a prisoner of war is not relevant.

 5               GENERAL CLEMENT:              Well, with respect,

 6   Justice Ginsburg and Justice Souter -- because I think

 7   it gets to the same point --              we are using "prisoner of

 8   war" the way that the common law courts use the term

 9   "prisoner of war."

10               JUSTICE SCALIA:              Is the Geneva Convention

11   modeled after the Constitution of the United States?

12               GENERAL CLEMENT:              No, it --

13               JUSTICE SCALIA:              What it means by "prisoner

14   of war" is the same thing that the Constitution means?

15               GENERAL CLEMENT:              Well, and -- and -- with

16   respect, the Framers in 1789 had the benefit of the

17   three Spanish soldiers and the Schiever case.              They

18   didn't have the benefit of the Geneva Convention.

19               JUSTICE SOUTER:              And the three Spanish

20   soldiers were -- were ultimately found to be prisoners

21   of war, And, yet, they had process to get into court.

22   There was no question of the jurisdiction of an English

23   court to entertain their claim.

24               GENERAL CLEMENT:              The writ was denied,

25   Justice Souter.

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 1                 JUSTICE SOUTER:           The relief was denied.

 2                 GENERAL CLEMENT:           No, the writ was denied.

 3                 JUSTICE SOUTER:           That had a hearing under

 4   the writ.

 5                 GENERAL CLEMENT:           They did not have a

 6   hearing.    The writ was --

 7                 JUSTICE SOUTER:           Then how did the court ever

 8   come to the conclusion that, in fact, they were

 9   prisoners of war?

10                GENERAL CLEMENT:            Because it said that -- it

11   looked at the pleading in the petition.                  There was no

12   hearing.    It looked at the petition and it said:                on

13   their own showing, they are prisoners of war.                  They are

14   denied the writ.

15                JUSTICE SOUTER:            On their -- on their own

16   showing, but, in fact, the proceeding did not end until

17   the court had come to that conclusion.

18                It was not a conclusion that the court

19   assumed simply on the basis of a Government claim in the

20   return to the writ.

21                GENERAL CLEMENT:            It didn't even ask for a

22   return, Justice Souter.         I mean -- you know, they

23   decided the case --

24                JUSTICE SOUTER:            On the basis of a

25   Government claim formally or informally proffered to the

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 1   Court.     They -- they came to that conclusion, as you

 2   said, based on the -- on the prisoners' own showing.

 3   But the court certainly -- there is no authority in the

 4   prisoner of war case for saying that if the Government

 5   make as claim that one is a prisoner of war -- contrary

 6   to the Government's prior position, incidentally -- that

 7   that forecloses the possibility of consideration under

 8   the writ -- the petition as filed.

 9                  GENERAL CLEMENT:           There is authority for

10   that proposition, Justice Souter.                  It comes along later

11   in the World War II cases in Britain.                     The reason

12   there's not authority contemporaneous with the 1759

13   cases is because these courts are operating with the

14   common-law rule you can't controvert the facts as set

15   forth in a return.      So the petitioners in these cases

16   wisely didn't make a factual dispute; they made a legal

17   dispute.    And the courts rejected it time and time

18   again.   I thought the Spanish sailors and the Shiver --

19   I'd like to just offer you that the 1941 authority --

20   because this question of course, over time, by 1941, the

21   British courts have relaxed the rule against

22   controverting the facts of the return, and they

23   addressed this question about what kind of factual

24   inquiry is necessary when the government comes back and

25   says that somebody is an enemy combatant, a prisoner of

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 1   war, or, under the Emergency Detention Act of 1939, a

 2   threat to the realm.

 3               And in two cases, Liverridge against

 4   Anderson and Green against Anderson, the law lords, in

 5   1941, say that they are not going to look beyond what

 6   the government has provided in the return.               They're not

 7   even, in the Green case, going to ask for an affidavit.

 8   So if you're looking --

 9               JUSTICE SOUTER:           Well, was that because they

10   were reflecting 1789 practice, or because they were

11   reflecting the Defense of the Realm Act?               I don't know

12   the answer to that.

13               GENERAL CLEMENT:           I think it is a pretty

14   good snapshot of where things were as of 1941.

15               JUSTICE SOUTER:           Unless you can answer my

16   question, we don't know what the snapshot proves.

17               GENERAL CLEMENT:           They were exercising

18   habeas jurisdiction.

19               JUSTICE SOUTER:           They were exercising habeas

20   jurisdiction in a court -- in a polity in which

21   Parliament is supreme and Parliament had already passed

22   the Defense of the Realm Act, and I don't -- I mean it.

23   I don't know the answer to the question I asked you.

24   But I think unless we have an answer to that, we don't

25   have a reliable clue as to the understanding of the

                           Alderson Reporting Company
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 1   English courts at a time that's relevant to our inquiry.

 2               GENERAL CLEMENT:            I think we do have an

 3   answer, Justice Souter.        It is in the Liverridge case,

 4   because there there's a question of interpreting the

 5   Emergency Detention Act.         And they basically have a

 6   choice.   They can interpret it to allow the detention to

 7   turn exclusively on the subjective belief of the home

 8   secretary, or they can interpret it to reflect an

 9   objective standard.     And they choose, over the dissent

10   of Lord Atkins, they choose purely subject if standard.

11   So in interpreting a act of Parliament that could have

12   gone either way they interpreted under the common law

13   writ to involve no factual inquiry whatsoever.            And the

14   case at common law in 1789 is a fortiori from that

15   because they would not go beyond the facts as set forth

16   in the return.   And the only response the Petitioners

17   have to that common law rule is they can point to a

18   couple of cases where the courts were tempted and did

19   accede to the temptation to peek beyond the return in

20   the context of a child custody case or private custody

21   cases.

22               But this is a situation --

23               JUSTICE BREYER:            I thought we were here

24   talking about -- I see that you have a strong argument

25   and they'll have a strong argument in reply.            I think

                           Alderson Reporting Company
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 1   both are pretty good, how you interpret these cases.                 I

 2   thought we were talking about what the availability of a

 3   forum in which you can make your argument and they can

 4   make their argument, and that's why I'm back to the

 5   question of this is remedy that's given in the statute

 6   sufficient to allow you to make your argument and their

 7   to make their argument?         And what you said was, when I

 8   thought I produced an example of an instance they wanted

 9   to argue quite strongly, and you said no, they couldn't.

10                Then you said well, neither could they in

11   England.    Well, that I wonder.             That's where I'm back

12   to.   After all, England doesn't have a written

13   constitution.   So it is hardly surprising if they

14   concede everything away in England, they're not going to

15   be able to make any argument.              There's nothing left.

16   But let's image in England you had a statute and that

17   statute said the government cannot hold an alien in

18   Beckawannaland for six years without either charging

19   them or releasing them.         Or except for -- and we have

20   some very detailed preventive detention.                 Suppose there

21   was a statute like that.          And then our friends in

22   England in whatever year conceded every argument but

23   that one.

24                Now, are you going to tell me now that the

25   habeas courts would have said we won't even listen to

                          Alderson Reporting Company
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 1   your argument?

 2                GENERAL CLEMENT:            As Justice Souter pointed

 3   out -- I mean, if you assume that the statute also said

 4   any review for that claim should be in the court of

 5   appeals, not in the traditional --

 6                JUSTICE BREYER:            Correct.         And you told me

 7   in this statute the court of appeals will not listen to

 8   that argument.   And as I read the statute, I agree with

 9   you.   Because I can find no place where they could make

10   that argument since it does not concern how well this

11   tribunal did, nor does it concern the constitutionality

12   of the procedures of the tribunal.

13               GENERAL CLEMENT:             Well, Justice Breyer, as I

14   say, I think that if you accept that there would be some

15   deference to the ability to bring statutory claims, I

16   don't know why that deference would be limited to the

17   substance and not to the forum.

18               And Congress here has spoken.                   It has

19   spoken.   The political branch has spoken.                  They have

20   struck a balance.    They've given these detainees better

21   rights and access to administrative and judicial review.

22   Anyone --

23               JUSTICE ALITO:           If the Court holds that the

24   DTA is not an adequate substitute for habeas, what will

25   happen?   Will these Petitioners then have access to all

                          Alderson Reporting Company
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 1   of the procedures that normally apply in a habeas

 2   proceeding under 2241?         The same right to discovery,

 3   subpoena witnesses, access to classified information,

 4   presence in court?

 5                GENERAL CLEMENT:             The government will

 6   certainly take the position that they are not entitled

 7   to those things.    Presumably the Petitioners will be

 8   arguing they are entitled to those things.

 9                The answers to those questions will be

10   unclear because the review provided by the DTA and the

11   habeas statute, if it is applied in this context, either

12   way, whatever the vehicle for that judicial review, it

13   will be unprecedented.         And there will be difficult

14   questions that will need to be worked out, and I don't

15   understand why --

16               JUSTICE SCALIA:              General Clement, if we had

17   to either charge or release these people, what would

18   they be charged with?        Waging war against the United

19   States?   Is there a statute that prevents non-citizens

20   from waging war against the United States and provides

21   criminal penalties?

22               GENERAL CLEMENT:              Not as such,

23   Justice Scalia.    Now, of course, we might have an

24   argument as to some of these individuals, that they

25   engaged in unlawful --

                           Alderson Reporting Company
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 1                JUSTICE STEVENS:           As I understand the

 2   government's position, these people are not in uniform,

 3   so they're not an under the law of war.                 They have all

 4   committed murder, not just fighting a war.                That's your

 5   theory, I think.   They are all committed war crimes.

 6   Those that were caught on the battlefield, I mean.                I'm

 7   talking about those.

 8                GENERAL CLEMENT:           Right, and the ones that

 9   actually killed somebody would have committed murder.

10               JUSTICE STEVENS:            That's right.      And they

11   are not prisoners of war under the law of war, because

12   they were not in uniform.

13               GENERAL CLEMENT:            They don't qualify for

14   prisoner of war status, but just to be clear I think

15   certainly when the British cases are talking about --

16               JUSTICE STEVENS:            I'm talking about common

17   law.   I mean under the law of war, the common law of

18   war.   They were not prisoners of war.

19               GENERAL CLEMENT:            They would not qualify for

20   prisoner of war status.        They're enemy combatants --

21               JUSTICE STEVENS:            Their engaging in war-like

22   acts would be the crime of murder or the crime of

23   assault and so forth and so on.              That's how I understand

24   your theory in one of these prosecutions is that not --

25               GENERAL CLEMENT:            That would be our theory

                         Alderson Reporting Company
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 1   in those cases --

 2                 JUSTICE STEVENS:           I mean it is your theory?

 3                 GENERAL CLEMENT:           That would be our theory

 4   in those cases -- and it is our theory in those cases

 5   we've chosen to prosecute --

 6                 JUSTICE STEVENS:           Right.

 7                 GENERAL CLEMENT:           -- in the military

 8   commissions, but there are other individuals with

 9   respect to whom we don't have the right kind of evidence

10   in order to go with the full-blown military commission

11   trial, but we still have the option that this Court

12   recognized in Kirin and Hamdi and most particularly in

13   Kirin, not just to try people who are unlawful

14   combatants for their unlawful combatancy, but also to

15   hold them as we would hold anybody else who was captured

16   as preventative detention.

17                 JUSTICE STEVENS:           For the duration of

18   hostilities, if you can show that they are enemies.

19                 GENERAL CLEMENT:           Well, I think if we can

20   show that they were enemy combatants, that's exactly

21   right.

22                 JUSTICE SOUTER:           And you are operating today

23   under a broader concept, as I understand it, of "enemy

24   combatant"?

25                 GENERAL CLEMENT:           Than?           I'm sorry?   Broader

                          Alderson Reporting Company
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 1   than what?

 2                JUSTICE SOUTER:           Than was indeed the case

 3   for example in our early litigation, let alone at the

 4   time of Kirin.

 5                GENERAL CLEMENT:           Well two things,

 6   Justice Souter.   One thing is that with respect to the

 7   definition that the military commissions -- I'm sorry --

 8   that the C-Cert 7 apply, that is a broader definition, I

 9   would quickly add though that with respect to the

10   majority of individuals -- I mean you have the

11   Petitioners from Bosnia that Mr. Waxman represents, but

12   most of these people were seized in Pakistan and

13   Afghanistan, and so the situation is not that different.

14   And obviously we would take the position to the extent

15   you have some concerns about the breadth of the

16   definition, what this Court -- what the plurality said

17   in Hamdi in footnote 1 gets it exactly right.              The way

18   to deal with those concerns is in the adjudication of

19   particular cases which can take place under the DTA or

20   can take place in habeas.

21                And again I think the burden --

22                JUSTICE SOUTER:           But how can -- and this

23   again, maybe I should know the answer to this, but I

24   don't.   How could that be litigated under the DTA?

25   Doesn't any proceeding under the DTA simply have to

                         Alderson Reporting Company
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 1   accept the statutory definition?

 2               GENERAL CLEMENT:            No, it does not.          I mean

 3   it's a regulatory --

 4               JUSTICE SOUTER:            You mean -- you're saying

 5   if it gets to the court of appeals, they can raise the

 6   constitutional claim that the definition is broader than

 7   constitutionally could be enforced.                     Is that what you're

 8   saying?

 9               GENERAL CLEMENT:            That was in my points,

10   Justice Souter.   So I think that --

11               JUSTICE KENNEDY:            I didn't understand that

12   point when you were having your colloquy with

13   Justice Breyer, either.        I thought you were going to

14   answer to Justice Breyer, that the court of appeals does

15   have the right to determine whether to the extent the

16   Constitution and the laws of the United States are

17   applicable, whether such standards and procedures, such

18   as CSRT, are -- - to make the determination -- are

19   consistent with the Constitution --

20               GENERAL CLEMENT:            Yes, Justice --

21               JUSTICE KENNEDY:            -- that's provided in the

22   MCA.

23               GENERAL CLEMENT:            It absolutely is.          I think

24   Justice Breyer's hypothetical was cleverly crafted,

25   though, to take that off the table.

                         Alderson Reporting Company
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 1                JUSTICE BREYER:             It wasn't cleverly

 2   redrafted.   I wanted to say that the people I'm thinking

 3   of are not challenging those procedures.                  What they say

 4   is you could have the best procedure in the world, and

 5   they're totally constitutional -- we'll assume that --

 6   they're assuming it.        They're not going to concede it.

 7   They're assuming it.

 8                On that assumption, we still think that

 9   Congress, the President, the Supreme Court under the

10   law, cannot hold us for six years without either trying

11   us, releasing us, or maybe confining us under some

12   special statute involving preventive detention and

13   danger which has not yet been enacted.

14                JUSTICE KENNEDY:             But the statute --

15                JUSTICE BREYER:             They are arguing it.

16                JUSTICE KENNEDY:             But the statute talks

17   about standards.   Why can't that question that

18   Justice Breyer raised be reached by the Court of Appeals

19   under the CSRT review hearings when it determines the

20   constitutional adequacy of the standards, or am I

21   missing something?

22                GENERAL CLEMENT:             Well, I think, again, that

23   Justice Breyer's hypothetical, as I understood it, sort

24   of assumed away the adequacy of all of the standards and

25   just said:   Putting all of that to one side, I have some

                           Alderson Reporting Company
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 1   other constitutional claim.

 2                 And I'm just not so sure that habeas ever

 3   allowed you to sort of bring every claim that you

 4   possibly wanted to; and I think the -- what I -- the way

 5   I read this Court's Hamdi decision is what was

 6   envisioned on a habeas case in a case where Army

 7   Regulation 190-8, which, of course, the plurality cited,

 8   was complied with.      It was in that case:              The habeas

 9   petition in court would take that as a starting point,

10   and that you wouldn't necessarily be able to say:                 Look,

11   it was nice that we had that proceeding, but put that to

12   one side.    I have another claim.

13                 I don't think the court, even in habeas,

14   would have envisioned that that would go forward.

15                 JUSTICE KENNEDY:            Just one more question on

16   that point:   Would the Court of Appeals in -- under the

17   MCA have the authority to question the constitutionality

18   of the definition of noncombatant -- of unlawful

19   combatant?

20                 GENERAL CLEMENT:            Absolutely,

21   Justice Kennedy.   That would be available to them in the

22   D.C. Circuit.

23                 JUSTICE STEVENS:            General Clement, I thought

24   your answer to Justice Breyer -- and maybe I'm missing

25   something -- would be that there is a third alternative

                           Alderson Reporting Company
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 1   which he didn't consider, namely:                  That these are

 2   combatants picked up on the battlefield, and they may be

 3   detained indefinitely without proving they committed a

 4   crime.

 5               And that is your position, I think.

 6               GENERAL CLEMENT:              That is our position.        I

 7   mean I want to give Justice Breyer's hypothetical its

 8   due.   I mean there might be claims that you could have

 9   brought, hypothetical claims that you could have brought

10   at some level, and that the DTA does --

11               JUSTICE STEVENS:              You have a hypothetical

12   claim that a particular prisoner says:                    I was kidnapped

13   by people who were not in the United States Army and

14   sold for a bounty.      And I am -- I just happened to be

15   there when I got kidnapped.

16               And then there is a genuine question of fact

17   as to whether the fact that they may have been sold in

18   that manner justifies detention, which is a different

19   question entirely from whether they committed a

20   violation under the law of war.

21               GENERAL CLEMENT:              Absolutely,

22   Justice Stevens.   But that question, of course, can be

23   considered by the D.C. Circuit on review, because

24   they're specifically entitled to a preponderance review

25   in the D.C. Circuit.        So that's a claim that they

                           Alderson Reporting Company
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 1   clearly could bring.

 2               They can also bring the statutory and

 3   constitutional claims to the standards and procedures,

 4   and they can make claims that the procedures that are

 5   set forth in the CSRTs are not provided.                  And I think,

 6   again, if you compare that to what they would have had

 7   at the common law, and you ask the question --

 8               JUSTICE STEVENS:             Let me interrupt again,

 9   and I know your argument.           But with respect to those

10   claims, do you make the argument in your brief that some

11   evidence is enough to refute that claim, or do you say

12   it is a preponderance standard?

13               GENERAL CLEMENT:             It's a preponderance

14   standard, and that's what is set forth in the statute.

15   And, again, that's something where Congress specifically

16   got involved in the CSRTs in a way that I think is

17   different from the Hamdan case and Congress's

18   involvement with the Military Commissions.                  In the

19   Military Commissions --

20               CHIEF JUSTICE ROBERTS:                  I suppose any

21   challenges to the adequacy of the standards, or

22   whatever, are the sort of things that would be raised in

23   the D.C. Circuit.    And we don't know what that's going

24   to look like yet, because the D.C. Circuit hasn't had an

25   opportunity to rule on those.

                          Alderson Reporting Company
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 1                GENERAL CLEMENT:             That's exactly right,

 2   Mr. Chief Justice.      And that's why, as we say in the

 3   brief -- I mean there's a sense in which this is really

 4   a facial challenge.

 5                I mean, in order for them to prevail with

 6   the argument that DTA review is an inadequate

 7   substitute, they really have to say that it is

 8   inherently an inadequate substitute.                      That no matter

 9   kind of how many times the D.C. Circuit cuts the

10   Petitioner a break --

11                JUSTICE STEVENS:             Isn't the main issue the

12   fact that it has taken six years to have the issue

13   resolved -- "relevant" --

14                GENERAL CLEMENT:             Well, I mean --

15                JUSTICE STEVENS:             They say they have

16   been unlawfully detained for six years from the

17   beginning.   And isn't that delay relevant to the

18   question of whether they have been provided such a

19   wonderful set of procedures?

20                GENERAL CLEMENT:             Well, Justice Stevens, I

21   think the delay is going to be relevant to whether or

22   not courts should expedite hearings, and the like.                     But

23   I don't think it should cloud the basic constitutional

24   question before this Court.

25                CHIEF JUSTICE ROBERTS:                  The procedures that

                           Alderson Reporting Company
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 1   are before us under the DTA and the MCA, of course,

 2   weren't available for the whole six-year period, were

 3   they?

 4               GENERAL CLEMENT:            No, of course not.         And I

 5   think it is worth recognizing that Congress legislated

 6   in this area not in year one, and then six years have

 7   gone by.   Congress legislated with these particular

 8   procedures and this level of review in years four and

 9   five.

10               And the fact that they didn't immediately

11   take effect, I think, is not an accident.                It is a

12   product of the fact that Congress in this area was

13   providing unprecedented review.

14               JUSTICE GINSBURG:             General --

15               GENERAL CLEMENT:            And, of course, when you

16   do something unprecedented, new questions will arise.

17               JUSTICE GINSBURG:             I think, to go back to

18   the beginning, my notion of your position was you never

19   get to that question:      Is the review of these procedures

20   adequate in the D.C. Circuit, because there is no

21   authority, period, for the D.C. Circuit to engage -- to

22   grant what is before us is if the -- our applications

23   for a writ of habeas corpus.

24               You say that's out the door.                They might

25   bring some other proceedings.             I thought that was your

                         Alderson Reporting Company
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 1   position.

 2                GENERAL CLEMENT:            I think that is our

 3   position, Justice Ginsburg.             But our position is they

 4   want -- they styled something -- they filed something

 5   called a habeas petition.           Congress subsequently has

 6   come in and said:    The way we are going to deal with

 7   this is we are going to remove jurisdiction for that

 8   habeas petition, and we're going to allow you to file a

 9   DTA review provision -- a DTA review petition.

10               Now, their argument is that Congress can't

11   force that choice on them because this is an inadequate

12   substitute for habeas.        The Suspension Clause applies in

13   Guantanamo; and therefore, the DTA is effectively

14   unconstitutional to the extent it prevents us with

15   proceeding with our habeas petition.

16               Now, there are a variety of ways this Court

17   could reject that claim.          It seems to me that the most

18   straightforward way, though, is to simply ask the

19   question:   If the level of review provided by the DTA in

20   the DTA petition were provided by statute in 1789 or

21   even 1941, for that matter, would it have been seen as a

22   liberalization of the writ, or a contraction and

23   suspension of the writ?

24               And I think it is very, very clear that if

25   this statute had passed, if this kind of review was

                          Alderson Reporting Company
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 1   provided in 1789 or in 1941, it would have been greeted

 2   as a remarkable -- remarkable liberalization of the writ

 3   as it had then been understood.

 4               And I think we are in the situation where

 5   these individuals, for the first time, are really

 6   allowed this kind of access to the court system.

 7               And when that happens, there are going to be

 8   difficult questions.     We have difficult questions about

 9   what the record on review is.            We have difficult

10   questions about the extent to which classified

11   information should come in.

12               But all of those difficult questions are

13   going to be waiting for us if we go back to the habeas

14   courts, because the same kind of issues --

15               JUSTICE BREYER:           Well, on that -- and you

16   just mentioned remedy.      Suppose, contrary to what you

17   hope for, that the Court were to say that this is -- we

18   have a minute or two.

19               Suppose they were to say that this is an

20   unconstitutional suspension of the writ, and that the

21   remedy here written in the statute is not adequate in

22   respect to many claims that might be made.

23               On that assumption, the habeas would lie.

24   Now, it has been six years, and habeas is supposed to be

25   speedy.

                        Alderson Reporting Company
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 1                And, yet, people have serious arguments,

 2   anyway, that they are being held for six years without

 3   even having those arguments heard.

 4                Is there anything in your opinion that this

 5   Court could say by way of remedy that could get the

 6   D.C. Circuit or the others to decide this and the CSRT

 7   claims, there are 305 people to do this quickly within a

 8   period of months rather than six more years?            And if so,

 9   what?

10                GENERAL CLEMENT:           I mean, obviously lower

11   courts take anything this Court says very, very

12   seriously.   So, if this Court makes it clear --

13                JUSTICE BREYER:           Are we faced with this

14   problem, and I don't want to put you right on the spot,

15   what approximately would you say in respect to this?

16   Because it is a serious problem.

17                GENERAL CLEMENT:           Well, I mean -- let me --

18   if I could, I would answer it as to what this Court

19   should say about what the D.C. Circuit should do on DTA

20   review.   I prefer to discuss the opinion where we win

21   rather than the opinion where we lose.

22                As to that opinion, the courts -- the lower

23   courts should be instructed to with due cognizance for

24   the fact these individuals have been detained six years

25   and this is the process that has been provided in order

                         Alderson Reporting Company
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 1   to decide whether or not that continuing custody is

 2   lawful, they should expedite this to the greatest extent

 3   possible.

 4               JUSTICE KENNEDY:           How can we fit your

 5   position when we have no jurisdiction here?

 6               JUSTICE SOUTER:           If you win, we never get to

 7   these issues.

 8               GENERAL CLEMENT:           With respect if you win --

 9   if we win, you still write an opinion saying that we

10   win, and that opinion can still say everything --

11               JUSTICE KENNEDY:           Our opinion says have a

12   nice day, everybody.

13               (Laughter.)

14               JUSTICE SOUTER:           You can't win without

15   reversing the Court of Appeals.

16               GENERAL CLEMENT:           You can certainly affirm

17   on alternative grounds.

18               JUSTICE SOUTER:           If we affirmed on

19   alternative grounds, leaving the court of appeals'

20   reasoning as it stands, these interesting questions that

21   you referred to will never arise.

22               GENERAL CLEMENT:           I don't think that's

23   right, Justice Souter.      There is active litigation going

24   on in the D.C. Circuit over basically these questions

25   and how this litigation is going to take place.           And if

                        Alderson Reporting Company
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 1   this Court in affirming on -- begrudgingly affirming and

 2   directing the D.C. Circuit to move with all appropriate

 3   dispatch, that's going to be read just as carefully and

 4   taken just as seriously if it's an affirmance than if

 5   it's a vacate or a reversal.

 6                CHIEF JUSTICE ROBERTS:                  Is that because the

 7   withdrawal of jurisdiction does not apply to review of

 8   the proceedings in the D.C. Circuit that's provided

 9   under the statute?      In other words, your argument that

10   the habeas jurisdiction doesn't extend doesn't reach the

11   review of the adequacy of the DTA proceedings?

12               GENERAL CLEMENT:              That's exactly right.

13   That's exactly right.

14               JUSTICE SOUTER:              Why would they litigate

15   that adequacy if they have determined in advance that

16   substantively the individuals who are petitioning have

17   absolutely no rights?

18               GENERAL CLEMENT:              They hadn't decided that,

19   Justice Souter.   That might have been a problem back in

20   Rasul.   But now whatever the answer to the question of

21   whether the Constitution provides rights in Guantanamo,

22   they have rights.     They have the statutory right to

23   preponderance review.        They have a statutory right to

24   have the military follow its own procedures.                  And they

25   have lots of arguments in the lower courts trying to

                           Alderson Reporting Company
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 1   take advantage of those rights that they have.

 2                  So there will be a meaningful procedure in

 3   the D.C. Circuit --

 4                  JUSTICE SOUTER:           At the end of the day, the

 5   only thing, as I understand it, that could possibly be

 6   adjudicated would be the question of formal adherence to

 7   procedure or not.     There would never be an adjudication

 8   that ever went to the merits because the merits issue,

 9   as I understand it, is already -- I mean merits of

10   relief -- have already been prior admitted by the

11   existing determination of the circuit in this case.

12               GENERAL CLEMENT:              Well, Justice Souter, I'm

13   not sure that this Court -- I understand your question,

14   I believe, which is that the D.C. Circuit, I think,

15   almost unavoidably reading this Court's Rasul decision

16   and reading it as a statutory rather than a

17   constitutional holding, has stuck with its circuit

18   precedent and said that there aren't constitutional

19   rights here.    That is going to be true unless this Court

20   reverses it in habeas or in the DTA review.

21               It would seem particularly strange that if

22   that's the real problem that this Court would somehow

23   decide, well, you know, we really think the DTA is an

24   adequate substitute, but the only way we can correct

25   this other mistake, in our view, that the D.C. Circuit

                           Alderson Reporting Company
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 1   is laboring under is to rule against the government.

 2                JUSTICE SOUTER:           You were arguing that the

 3   question of the adequacy of the substitution should, in

 4   fact, be litigated in a plenary fashion in the Court of

 5   Appeals or the district court for that matter?

 6                GENERAL CLEMENT:           No.      I think that's the

 7   issue before this Court now.            And this Court, for

 8   example --

 9                JUSTICE SOUTER:           I thought you said a moment

10   ago that there were all of these interesting questions

11   that could be explored if there was a remand?

12                GENERAL CLEMENT:           I'm sorry, Justice Souter,

13   I may have misspoke.

14                JUSTICE SOUTER:           Maybe I misunderstood you.

15                GENERAL CLEMENT:           The interesting questions

16   that I think are left on the remand, no matter what, are

17   issues about whether or not based on the Abraham

18   declaration that the military followed their own

19   procedures for assembling the record below, or whether

20   the military followed its own procedures for providing

21   exculpatory evidence.      Those are all questions that

22   aren't questions that require the answer to the question

23   of whether Eisentrager is still good law --

24                JUSTICE SOUTER:           You are talking about in

25   effect about evidentiary procedural questions?

                         Alderson Reporting Company
                         Official - Subject to Final Review

 1                GENERAL CLEMENT:            I mean --

 2                JUSTICE GINSBURG:             You're talking about

 3   taking the statute, Congress's statute that set up this

 4   system with limited review in the D.C. Circuit and

 5   saying that's it.     The D.C. Circuit never got to that

 6   question because it said the acts that these people are

 7   trying to bring habeas doesn't exist.                    The only thing

 8   that they have, the only remedy they have is the one

 9   that Congress provided.         And it seems to me the only

10   question before us is whether there is jurisdiction in

11   the court of appeals to decide that threshold issue.

12   They tossed it out and didn't reach -- didn't say one

13   word about the adequacy of the procedures or of the

14   things that you're talking about.

15                GENERAL CLEMENT:            I think that's right,

16   Justice Ginsburg.    I want to be clear that my position

17   is that an alternative ground for affirmance, which

18   would allow this Court to address some of those

19   questions, is that the D.C. Circuit was right to say

20   that the DTA review, that the habeas petition should be

21   dismissed.   The reason they were right is because the

22   DTA is an adequate substitute for habeas.

23                JUSTICE GINSBURG:             That would be -- we would

24   be deciding that as a court of first view because they

25   didn't decide that?      You don't need an adequate

                           Alderson Reporting Company
                       Official - Subject to Final Review

 1   substitute for habeas because you have no right to

 2   habeas.

 3               GENERAL CLEMENT:           I think that's a fair

 4   observation, but obviously this Court --

 5               JUSTICE STEVENS:           General Clement --

 6               GENERAL CLEMENT:           In the context --           I mean

 7   this has been fully briefed in, and in the context of

 8   where the Court uses an alternative ground for

 9   affirmance, it would not be a novel situation, I don't

10   think.

11               JUSTICE STEVENS:           General Clement, your

12   suggested reason why they're right is quite different

13   from the reason they actually gave.                    They did not reach

14   the question of the adequacy of these procedures.

15               GENERAL CLEMENT:           I think that's a fair

16   point, Justice Stevens, though I would say that really

17   their reasoning encapsulates one of the three reasons

18   why at common law they were right.

19               JUSTICE STEVENS:           Yes, but they did not

20   reach this very important part of the whole case.                   And,

21   Of course, the substitute procedures here are not nearly

22   the same as those in our prior cases of where we

23   sustained the 2255 and district here.

24               GENERAL CLEMENT:           Oh, that's right,

25   Justice Stevens, but in fairness, in those situations

                        Alderson Reporting Company
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 1   you were dealing with sort of substitutes for core

 2   habeas under situations where they're was no dispute

 3   that there was a robust right to habeas at common law,

 4   and so here you first deal with the situation of -- all

 5   right, the baseline is, as Judge Friendly suggests,

 6   1789, is this an adequate substitute?                  And that even if

 7   somehow -- and I don't know how you get past that --

 8   then you I think still might ask the question that this

 9   Court asked in the Felker case, which is, you know,

10   giving some deference to Congress's ability to shape the

11   scope of the writ, is there a problem here?                 I think we

12   would point the Court to Felker.

13               JUSTICE STEVENS:           And you say those later

14   cases are not relevant because habeas corpus in the

15   modern world is much broader than it was in 1789.

16   That's part of your point?

17               GENERAL CLEMENT:           That is part of our point.

18               JUSTICE STEVENS:           Yes.

19               GENERAL CLEMENT:           And we would say, though

20   --

21               JUSTICE STEVENS:           And the comparison you ask

22   us to make is between what the habeas writ was in 1789,

23   not what the comparison to a habeas writ would be today?

24               GENERAL CLEMENT:           We would start with that

25   proposition, but I think this isn't a case where it's

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 1   just 1789 versus today because as I read this -- -

 2               JUSTICE STEVENS:             I don't think you would

 3   seriously contend that the procedures set forth in the

 4   statute are equivalent to those afforded under the

 5   habeas writ under today's jurisdiction?

 6               GENERAL CLEMENT:             It's a hard question for

 7   me to answer -- -

 8               JUSTICE STEVENS:             At least you haven't

 9   argued that.

10               GENERAL CLEMENT:             Well, no, but I mean the

11   question is, you know, in a different case, sure, there

12   would be a different habeas.             But we don't know sort of

13   the answer as to what habeas looks like in the context

14   of enemy combatants detained in a place like Guantanamo,

15   and we suggest, based on our best reading of Hamdi that,

16   if there was habeas jurisdiction now, that the

17   proceeding that would unfold would not be the plenary

18   habeas that is envisioned by Petitioners but would be a

19   much more narrowly circumscribed habeas.                 I would also

20   point out that, again, it's not just --

21               JUSTICE STEVENS:             On the point I made, I

22   think that's critical to your argument that the

23   substitute is adequate.

24               GENERAL CLEMENT:             I think that's right.      I

25   would say, though, that our only baseline is not 1789

                          Alderson Reporting Company
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 1   because, as we read this Court's decision in Rasul,

 2   Rasul is based on the predicate that until 1973 and

 3   Braden's overruling of Ahrens, that the habeas statute

 4   would not have gone to Guantanamo.                 And unless this

 5   Court is willing to say that there was an inchoate

 6   Suspension Clause violation until 1973 when Braden comes

 7   along, it seems like the tradition in this country too,

 8   based on the immediate custodian rule and the

 9   territorial jurisdiction of the courts, was that habeas

10   in Guantanamo is a novelty.           It's -- 1973 at best.

11               If I could finish with just bringing the

12   Court's attention to one thing.             This is in an amicus

13   brief that is in support of us, the Criminal Justice

14   Legal Foundation brief.        But there's sufficiently little

15   precedence for the Court to rely on, and I want the

16   Court to have this:     The Schiever case, which is one of

17   the prisoner-of-war cases.         There's not -- in the Rasul

18   case, Justice Stevens, and the parties, we both cited to

19   volume 97 of English Reporter and the report of the case

20   by Burrow -- there is in the English Reports an

21   alternative report of that case, from Kenyon.                And the

22   report of that case which is 96 English Reports 1249 is

23   actually longer on the law, shorter on the facts, but

24   longer on the law than the report by Lord Burrow.                So I

25   wanted the court to have that available to them.

                           Alderson Reporting Company
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 1                CHIEF JUSTICE ROBERTS:                Thank you,

 2   General Clement.

 3                Mr. Waxman, we'll give you five minutes.


 5                   ON BEHALF OF THE PETITIONERS

 6                MR. WAXMAN:       Thank you, Your Honor.

 7                I want to speak mostly about the adequacy of

 8   the substitute and particularly the question that you

 9   and Justice Kennedy asked about adjudication of the

10   standard on remand, but just to take first things first,

11   I don't -- I don't believe I've ever seen the

12   government's -- the case Liverridge or Green cases cited

13   by the government before.          And I don't know what they

14   say.   But it is absolutely incorrect that DTA review of

15   the CSRTs is a liberalization of the traditional writ.

16   As this Court made -- or the King's Bench made clear in

17   the Bushell's case and all of the commentators including

18   Sharpe, who both sides are citing as authoritative, here

19   agree in cases of executive detention, where there

20   wasn't a trial occurring, the court absolutely could --

21   the prisoner could controvert the facts of the return in

22   Schiever and Spanish Citizens -- Spanish Prisoners,

23   there wasn't an original hearing because the court

24   issued -- sat as nisi prius court and considered

25   affidavits of the prisoners and third parties and

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 1   determined on the basis of the affidavits that they were

 2   prisoners of war.

 3               But it is absolutely clear that the writ did

 4   extend to the question of "I am not a combatant.                  I am

 5   not a warrior, number one.           And number two, it did go in

 6   non-criminal detentions to the underlying facts of the

 7   detention, and that goes to the point about the standard

 8   that Justice Kennedy asked and the Chief Justice asked.

 9               We agree that, if and when the D.C. Circuit

10   ever addresses the merits of these cases, and not only

11   is there no CSR -- complete record on return in any

12   case, but the government has suggested they proceed five

13   at a time, and we're now two years running without a

14   single one -- but there's no doubt that the argument

15   we're making in Roman numeral 2 of our brief, that the

16   CSR, the Wolfowitz definition is not authorized

17   detention under the AUMF, which as this Court in Hamdi

18   said, incorporates long-established law-of-war

19   principles and American traditions.

20               We can raise that claim because they have to

21   establish that the procedures and standards were

22   consistent not only with the Constitution but also with

23   the laws of the United States.               And the problem this is

24   this --

25               CHIEF JUSTICE ROBERTS:                  That is an argument

                          Alderson Reporting Company
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 1   that, I gather, both sides agree is available to you

 2   under the DTA before the D.C. Circuit.

 3                 MR. WAXMAN:       That is absolutely correct.

 4   But what -- what habeas at its core was -- and we're

 5   talking -- I'm happy to live in the world of 1789 now --

 6   is executive detention and not the more modern

 7   innovations where, well, certain procedures weren't

 8   constitutional or whatever, but you have no right to

 9   hold me.   The facts won't allow you to hold me.                The

10   D.C. Circuit cannot --

11                 JUSTICE KENNEDY:           What does that tell you

12   about the adequacy of the substitute?

13                 MR. WAXMAN:       Because the D.C. Circuit --

14   because the D.C. Circuit is reviewing a record that was

15   adduced ex parte, in camera, with a presumption to boot

16   that it is -- that the evidence is both accurate and

17   complete, and the D.C. Circuit is -- has already said it

18   will not hear any new evidence and it must apply that

19   same presumption that that evidence that was heard ex

20   parte in camera with its own presumption is correct.

21   And here's -- let me just give you an example of what

22   difference this makes.        You have the unredacted version

23   of Judge Green's district court opinion.                 I don't.   She

24   discusses -- she does address the adequacy of the

25   substitute.   And she addresses the case of two

                          Alderson Reporting Company
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 1   individuals.   One is Mr. Ait-Idir, who is my client, and

 2   you have both in her opinion and our brief this truly

 3   Kafka-esque colloquy at his hearing in which he is

 4   accused of associating with a known Al-Qaeda operative,

 5   which he denies, but he can't be told the name.

 6                Mr. Kurnaz is the other Petitioner who is

 7   discussed in her brief.        He was a Petitioner in this

 8   Court, but he has since been released by the government

 9   because of the fact that he had what the CSRTs won't

10   give him, which is a lawyer.            He was told, two years

11   after he was detained -- he's a German permanent

12   resident -- he was told at his CSRT, as many of these

13   individuals were not, that he was being held because he

14   associated with a known terrorist.                 And he was told the

15   name.

16                He was told that he associated with somebody

17   called Selcook Bilgen who, the government contended, was

18   (a) a terrorist, who was -- had blown himself up while

19   Mr. Kurnaz was in detention -- may I simply finish this

20   account -- while he was in detention and in a suicide

21   bombing; and all that Mr. Kurnaz could say at his CSRT

22   where he had no lawyer and had no access to information

23   was I never had any reason to suspect he was a

24   terrorist.

25                Well, when the government, in the habeas

                         Alderson Reporting Company
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 1   proceedings, filed its factual return in Judge Green's

 2   court, it filed as its factual return the CSRT record.

 3   His counsel saw that accusation.                Within 24 hours, his

 4   counsel had affidavits not only from the German

 5   prosecutor but from the supposedly deceased Mr. Bilgen,

 6   who is a resident of Dresden never involved in terrorism

 7   and fully getting on with his life.

 8                 That's what -- and that evidence would not

 9   have been allowed in under DTA review.                   It wouldn't have

10   been in the CSRT, and it won't come in under DTA review.

11   And that's why it is inadequate.

12                 CHIEF JUSTICE ROBERTS:                Thank you,

13   Mr. Waxman.

14                 The case is submitted.

15                 (Whereupon, at 11:24 a.m., the case in the

16   above-entitled matter was submitted.)











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