At Tuesday’s U.S. Supreme Court oral arguments for Hamdan v. Rumsfeld — a case with several ties to the Yale Law School — the majority of justices seemed skeptical of, and at times irate with, the government’s defense of military commissions established to try Guantanamo Bay detainees.
At the hearing, Neal Katyal LAW ’95, an increasingly high-profile Law School graduate known for his advocacy of pro bono work, defended Salim Ahmed Hamdan, the purported personal bodyguard of Osama Bin Laden. Yale Law School Dean Harold Koh and Yale law professors Bruce Ackerman, William Eskridge and Judith Resnik also weighed in on the case, each filing a separate amicus brief in support of Hamdan.
“This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States,” Katyal said in his opening statement.
For the remaining 45 minutes of his testimony, Katyal argued against the Pentagon’s position that civil courts lacked jurisdiction in the case and accused President George W. Bush ’68 of violating the traditional rules of war by establishing ad hoc tribunals governed by rules subject to the whim of the executive.
Katyal faced a number of challenges to his position by justices Samuel Alito LAW ’75 and Antonin Scalia; the latter recently spoke out against the rights of detainees captured in war. In a discussion of whether Hamdan’s conspiracy charge was justified — conspiracy alone is an offense that rarely has been upheld in military tribunals since the Civil War — Alito asked Katyal whether Hamdan could be charged with more specific crimes in the future, pending further evidence. Katyal used the opportunity to point out that seven of the 10 pending indictments of detainees named conspiracy as the only charge.
But most of the justices kept quiet until U.S. Solicitor General Paul Clement, who represented the Pentagon, took the floor. He argued that the military commissions are lawful and stem from a 200-year tradition in America.
“The executive branch has long exercised the authority to try enemy combatants by military commissions — that authority was [essential to] George Washington’s authority as commander-in-chief,” Clement said. “And that authority was incorporated into the Constitution.”
Constant challenges by left-leaning justices such as David Souter and John Paul Stevens prevented Clement from reaching his main points until the last five minutes of his statement. During the oral arguments, Souter asked Clement whether the Geneva Convention applied to Hamdan’s case; Clement said it did not.
“That, I guess, is the problem that I’m having,” Souter said. “You say the President is operating under the law recognized by Congress … [and on the other hand] you are saying that the laws of war don’t apply, and I don’t see how you can have it both ways.”
In addressing whether Congress had passed a law removing the case from the high court’s jurisdiction, as the Pentagon had argued, Justice Ruth Bader Ginsberg expressed doubt.
“It’s an extraordinary act, I think, to withdraw jurisdiction in a pending case from this court,” Ginsberg said.
But Clement said he felt that the president reserved exclusive power during wartime for establishing rules of justice for war detainees. When asked by an overtly disapproving Stevens whether the president could contrive his own laws of war, even without Congressional direction, Clement said Bush reserved this right.
“I think that we would take the position that he could, under sheer constitutional power,” he said.
Clement was also challenged on the fact that many detainees have been held without being officially charged.
“Isn’t there’s a pretty good argument that the suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take,” Souter said, adding later that the “writ is the writ” regardless of whether so-called enemy combatants are being held. “And therefore we ought to be just little slow to accept your argument that it can be done by pure inadvertence?”
Former Bush counsel Brad Berenson, reached in his office prior to yesterday’s oral arguments, said he knows from personal experience that Bush has no intention of circumventing the law. Rather, Berenson said, Bush feels a duty to uphold his constitutional duty to protect the nation.
“The President cares greatly about all of the aspects of the war on terror,” Berenson said. “He believed then, and I’m sure he believes now, that it’s an important tool for the country to have in [trying] purported war criminals.”
But in his amicus brief, Koh said he sees ensuring rights for war detainees as an ingredient in ultimately ensuring an end to terrorism.
“To be perceived as providing credible justice in the war on terror, the United States must hold trials that are fair and impartial both in fact and appearance,” Koh wrote in the document, which was joined by former Secretary of State Madeleine Albright and 21 former diplomats. “The current system of military commissions provides neither. Not only do these military commissions betray our commitment to the rule of law, they damage our reputation abroad and undermine our ability to promote the global rule of law as an antidote to terrorism.”
Other deep-seated constitutional questions — ranging from whether the military tribunals violated separation of powers to Congress’ intention in passing November legislation governing the legal rights of detainees — also came before the court during the hearing.
Stevens presided over the case yesterday in lieu of Chief Justice John Roberts, who recused himself because he had ruled on the case earlier while serving as a U.S. Court of Appeals judge. Legal experts say the justices may take more than three months to issue a ruling.