Bench Memos

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Gitmo Handicapping


Arriving a bit late to this thanks to my day job, herewith a few thoughts on the press coverage of Wednesday’s oral argument in Boumediane v. Bush (transcript here; audio recording here), concerning the possible extension of constitutional habeas corpus rights to detainees at Guantanamo who are held as unlawful enemy combatants.

Linda Greenhouse in the New York Times sent up her colors early in her story in Thursday’s paper: “A majority of the court appeared ready to agree that the detainees were entitled to invoke some measure of constitutional protection.”  Why Greenhouse reads the case as a done deal in this respect, she never explains.  But she goes on to claim that Solicitor General Paul Clement’s “argument failed to gain traction,” and that he “rather remarkably began throwing pieces of it over the side”–an overblown description of the justices’ reception of Clement’s argument, and of his response.  Shortly thereafter, Greenhouse–in a prediction brazen even by Greenhousian standards–writes:

By the end of the argument . . . it seemed likely that the court would draw a road map for the appeals court to follow in expanding the procedural protections to the detainees.

Or, one might say, by the end of her article, Greenhouse was trying to tell Justice Kennedy what he should do.  What she didn’t have–as any reader of the argument transcript can see–was a basis for her tentative prediction.

Over in the Washington Post on Thursday, Robert Barnes’s coverage was considerably more measured.  He referred only to “some justices” being in search of “practical remedies” to the situation at Guantanamo–as though the Congress hadn’t provided such remedies already, and far better ones than enemy captives in wartime have ever been given.  But at least Barnes did not go out on a limb with an unsupported handicapping of the outcome.

Away from straight news reportage, in a zone where prediction is more appropriate, ABC’s Jan Crawford Greenburg devoted a long blog post to considering whether Justice Anthony Kennedy might surprise his liberal suitors by voting that Congress has provided the Gitmo detainees with adequate process that triggers no constitutional habeas concerns (even on the assumption that such concerns could be valid).  Greenburg argues, very interestingly, that Justice Samuel Alito’s line of questioning during the argument might bring Kennedy around.

I’ll make no prediction here.  Too much depends on the heart (not the head) of Anthony Kennedy for me to get into the handicapping business.  I know perfectly well what the Court should do, but not what it will.  What it should do (as David Rivkin and Lee Casey argue in Thursday’s Wall Street Journal) is forcefully reject these unprecedented claims that habeas rights be given to aliens captured in wartime and held outside the United States.

One thing’s sure about Wednesday’s argument.  The most oblivious question was framed by Justice Breyer (no surprise there), who restated the petitioners’ argument for them this way:

[W]e still think that Congress, the President, the Supreme Court under the law, cannot hold us for six years without either trying us, releasing us, or maybe confining us under some special statute involving preventive detention and danger which has not yet been enacted.

Huh?  Two statutes have already been enacted by Congress that do exactly what Breyer appears to think hasn’t been done: the Detainee Treatment Act and the Military Commissions Act.  Where’s Breyer been?


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