From Hamdan to Absurdity

Tuesday’s oral argument before the Supreme Court in Hamdan v Rumsfeld offered some interesting verbal sparring between justices and the solicitor general arguing on behalf of the BushCheney theory of unlimited executive power. Dahlia Lithwick presents a good summary of the arguments at Slate:

...Solicitor General Paul Clement...cites the executive's longstanding authority to try enemies by military tribunal. When Justice John Paul Stevens asks for the source of the laws that such tribunals would enforce, Clement replies that the source is the "laws of war." When Stevens asks whether conspiracy is encompassed within the laws of war, Clement says that the president views conspiracy as within the laws of war....

Souter takes a slightly different tack: If you accept that the military commissions apply the laws of war, don't you have to accept the Geneva Conventions? he asks. Clement responds that the commissions can "adjudicate that the Geneva Conventions don't apply."

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

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

Clement objects to his word choice. "This isn't just some group of people," he says. This is the president invoking his authority to try terrorists.

Breyer goes back to the [Detainee Treatment Act] and whether it stripped the court of jurisdiction to rule on Hamdan's claims. He asks how the court can avoid "the most terribly difficult question of whether Congress can constitutionally deprive this court of jurisdiction in habeas cases."

And Stevens serves up another can't-have-it-both-ways query: When Congress takes away the courts' habeas corpus jurisdiction, "Do you say it's a permissible suspension of the writ or that it's not a suspension of the writ?" he asks.

"Both," replies Clement.

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

Later Breyer will add: "You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him." To which Clement's answer is the fail-safe: "This is a war."

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

At some point, it must begin to insult the collective intelligence of the court, these tautological arguments that end where they begin: The existing laws do not apply because this is a different kind of war. It's a different kind of war because the president says so. The president gets to say so because he is president....

In summary, Words mean what the president says they mean. I can’t find the exact quote but I believe Lewis Carroll’s Red Queen told Alice the same thing. I never expected to hear the same argument in a court of law but with BushCheney, everything is possible.


Bonus Question:

How likely is Congress to suspend one of the most fundamental Constitutional liberties (habeas corpus)inadvertantly?