Hamdan v. Rumsfeld – Oral Argument – March 28, 2006

Media for Hamdan v. Rumsfeld

Audio Transcription for Opinion Announcement – June 29, 2006 in Hamdan v. Rumsfeld

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John Paul Stevens:

We’ll hear argument in number 05-184, Hamdan against Rumsfeld.

Mr. Katyal, you may proceed.

Neal Kumar Katyal:

Justice Stevens, and may it please the Court–

We ask this Court to preserve the status quo to require that the President respect time honored limitations on military commissions.

These limits, placed in Articles 21 and 36 of the Uniform Code of Military Justice, require no more than that the President try offenses that are, indeed, war crimes and to conduct trials according to the minimal procedural requirements of the UCMJ and the laws of war themselves.

These limits do not represent any change in the way military commissions have historically operated.

Rather, they reflect Congress’s authority under the Define and Punish Clause to codify limits on commissions, limits that this Court has historically enforced to avoid presidential blank checks.

And because this commission transgresses those limits, it should be struck down and the District Court order reinstated.

If I could turn to the jurisdictional matter for a few moments first, we believe that the DTA, while certainly not a model of clarity, does not divest this Court of jurisdiction, for four essential reasons.

The first is that, if I could turn to the surreply at page… the appendix at page 14(a), that contains the initial version of the bill that passed the Senate on November 10th.

And at 14(a) it says, on the effective date provision,

“The amendment made by paragraph 1. “

which is the jurisdiction stripping provision,

“shall apply to any application or other action that is pending on or after the date of enactment of this Act. “

That language clearly attempted to strip courts of jurisdiction over Guantanamo claims.

That language, however, was changed in the final version of the DTA, and the final version of the DTA is found at page 10(a) of the surreply.

And that has the following as its effective date.

It has two effective date provisions.

The first one I want to start with is H(2), review of combatant status tribunal, CSRT, and military commission decisions,

“Paragraphs 2 and 3 of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of enactment of the Act. “

And then, there is a separate provision for the rest of the DTA, for–

Antonin Scalia:

Where was that change made from the prior version?

Neal Kumar Katyal:

–The change was made between November 10th and November 15th.

Antonin Scalia:

Yes, but, I mean, what… it was made in what house?

Was it made by the Conference Committee?

Neal Kumar Katyal:

It was made in the Senate.

Antonin Scalia:

It was made in the Senate.

So the House presumably never saw the prior–

Neal Kumar Katyal:

That–

Antonin Scalia:

–language.

Neal Kumar Katyal:

–That’s correct.

Antonin Scalia:

And the President, who signed this bill, never saw the prior language.

Neal Kumar Katyal:

That is correct.

Antonin Scalia:

So, why should we attribute to both the House and to the President a knowledge of the prior version of the legislation?

Neal Kumar Katyal:

Well, because the language itself was, I think, the subject of an immense amount of debate.

And, indeed, when the language was–

Antonin Scalia:

In the Senate.

Neal Kumar Katyal:

–In the Senate.

And well known.

And, indeed, you don’t have to attribute any knowledge to the President.

We have evidence in the record that the administration tried to change the language back to the original formulation.

And, indeed, in the House, the chairman of one of the… the vice chairman of the Conference Report said that the change in the language was in… was… the change in the language meant that it grandfathered pending cases such as this one.

So, this is not an example of which we have to resort simply to the negative inference of Lindh.

However, we do think that is the second reason for you to believe that this case is grandfathered under the existing DTA.

Samuel A. Alito, Jr.:

But isn’t that–

Ruth Bader Ginsburg:

What, in addition to this case… I mean, this case is pending in the U.S. Supreme Court.

There are many cases pending in the District Court when this law comes into effect.

What about those cases?

Neal Kumar Katyal:

We believe that, as the cosponsor said, on November 15th when they introduce the final version of the language, that all of those cases are grandfathered with respect to the H(1) effective date provision and the E(1) jurisdiction stripping provision.

However, that still leaves in place the Government’s main argument in the D.C. Circuit below, which is that the E(2) provision governing CSRT and final decisions, and the H(2) provision governing final decisions of… final decisions of CSRTs, truncates all of the review that is currently in the D.C. Circuit.

So, it’s certainly… it’s certainly possible, though it’s not, of course, presented in this case, to read the DTA as truncating the vast majority of claims at Guantanamo in current pending cases.

Of course, that isn’t the issue before you here.

The issue before you here is simply the Hamdan case, and there was… and there was a strong… the strong desire by the Congress not to interfere with this Court’s traditionally exercised jurisdiction.

Antonin Scalia:

Please go over that again.

I’m not… I’m not sure I understood… I understood your response.

Neal Kumar Katyal:

Okay.

Antonin Scalia:

You say that it could be read to preclude cases in the lower courts, but not here.

Neal Kumar Katyal:

That’s right, cases in which there is a final CSRT decision; that is, that the Government’s argument in the D.C. Circuit, Justice Scalia, is that there are two different ways in which the DTA truncated the review of Guantanamo cases.

One is the claim that the jurisdiction stripping provision applies to pending cases.

That, we reject.

Neal Kumar Katyal:

That, we think the Senate rejected on November 15th when it passed the bill.

The other is the claim that the E(2) provision governing final decisions of CSRTs, which does, of course, apply to pending cases, as the plain text says, eliminates and truncates a… the vast majority of the detainees’ claims.

That is the provision–

David H. Souter:

Does that mean, in practical terms, that the… that the… that the other claims that are in the District Court get transferred to the Circuit, the Circuit is bound by the limitations that you’ve just described, and, at the end of the day, the complaining parties in those cases can raise the question whether they… whether Congress could properly have truncated them, as it did, but it’s simply got to wait?

Neal Kumar Katyal:

–Absolutely.

And–

David H. Souter:

Okay.

Neal Kumar Katyal:

–to be clear, that’s not the position we’re saying that is the DTA.

That’s not presented here.

David H. Souter:

I realize–

Neal Kumar Katyal:

That’s the issue–

David H. Souter:

–Yes.

Neal Kumar Katyal:

–below, in the D.C. Circuit.

In addition, we believe that this statute doesn’t fall within the Bruner Hallowell presumption that the Government seeks to… seeks to use here, for a few reasons.

The first is, this is not a statute that is merely divesting a lower court of jurisdiction.

Rather, it’s a statute that alters substantive rights of Mr. Hamdan.

In particular, as the Government itself says, it eliminates question 2, upon which certiorari was granted, which is compliance with the Geneva Conventions.

In addition, it alters entirely what both courts below found, which is that Mr. Hamdan has a pretrial right, a right analogous to Abney versus United States, to bring his claim now, because he’s challenging the jurisdiction of the tribunal.

That pretrial right is something that mirrors… that goes all the way back to the founding, in the early cases that this Court decided, on pretrial habeas.

In addition, we believe that–

Samuel A. Alito, Jr.:

–Why does it… why does it affect the scope of the review that he could get eventually?

If there’s a final decision, there can be review of whether the use of the standards or procedures that were used by the commission to reach a final decision is consistent with the Constitution and laws of the United States?

Why doesn’t that encompass any claim that he might want to make later on?

Neal Kumar Katyal:

–Well, as the Government says, it does… certainly does not encompass question 2, because it eliminates the word “treaties”.

It’s a change from the habeas corpus statute.

More generally, it doesn’t do two things.

First, if that’s the reading that the Government wants to give, well, then it essentially means that the… that the President has the ability to block habeas corpus or post DTA review for all time, because, Justice Alito, it doesn’t turn on… you can’t walk into court right after you’re convicted, under the DTA; you can only walk into court after a final decision.

And a final decision requires the sign off of the President of the United States.

And so, effectively, this reading would give a litigant the ability to block Federal Court review for all time.

Samuel A. Alito, Jr.:

I mean, criminal litigation review after the final decision is the general rule.

Samuel A. Alito, Jr.:

There generally is not any interlocutory… any interlocutory appeal.

And what you say could happen in any criminal case if you assume bad faith on the part of the people who are responsible for making the decisions along the way.

They could delay indefinitely and postpone the entry of a final decision.

Neal Kumar Katyal:

Justice Scalia… Justice Alito, if this were a final… if this were like a criminal proceeding, we wouldn’t be here.

The whole point of this is to say we’re challenging the lawfulness of the tribunal itself.

This isn’t a challenge to some decision that a court makes.

This is a challenge to the court itself.

And that’s why it’s different than the ordinary criminal context that you’re positing.

The ordinary criminal context you’re positing… and I’m thinking of a case like Schlesinger versus Councilman, a court martial case… what the Court has said is that it’s the… the predicate for abstention is the idea that Congress has fairly balanced the rights of both sides, an independent branch, and has… and has made certain determinations.

Here, none of that has happened.

It’s all been made by the executive.

And the difference is crucial in military justice, because, as Justice Kennedy said for the Court in Loving, the framers harbored a deep distrust of military tribunals.

And the thing that makes it different than the ordinary criminal context, the thing that, as this Court said, stops military justice from being lawless is the Congress of the United States setting clear limits on the use of military justice.

Now, if those limits had been observed, if this Court… if the military commission complied with the rules of courts martial, we wouldn’t be here.

Our whole point is that they don’t, and that it falls outside of the well recognized abstention exception for courts martial cases.

In addition, we believe that to further… to further on… Justice Alito, on your point… this point is already said in the military commission context that a different rule applies.

In Quirin, this Court rushed in to hear a military commission challenge before the commission was over, and the reason why it did so was, it said that the public interest required adjudication of these issues.

And the public interest is no less severe in that case than it is here.

That is, this is a military commission that is literally unbounded by the laws, Constitution, and treaties of the United States.

And if you adopt the Government’s position here, it effectively replicates the blank check that this Court rejected in Hamdi.

Antonin Scalia:

Could I come back to Justice Alito’s question as to what the normal procedure would be in criminal cases?

Suppose you’re… you have a challenge to the makeup of the tribunal in a criminal case.

Is it… is it the normal practice that you would get to raise that challenge?

Let’s say one of the judges is disqualified for some other reason.

Can you normally raise that challenge before the criminal case is filed?

Neal Kumar Katyal:

I don’t believe so.

Antonin Scalia:

So, there would be nothing different in this situation, if you couldn’t raise it until it was final.

Neal Kumar Katyal:

Justice Scalia, everything is different about this.

That is, in your posited hypothetical, there is some law that you know will govern that ultimate question about disqualification or whatever the–

Antonin Scalia:

Oh, I know.

Neal Kumar Katyal:

–matter–

Antonin Scalia:

It goes to the merits of the issue.

I’m just talking about the timing of the issue.

Neal Kumar Katyal:

–Well, I do think that there’s an integral relationship to the… between the two.

That is, that the predicate for abstention has always been that Congress, or some other entity, has fairly balanced the rights of both sides.

Here, you don’t have that fundamental guarantee.

Indeed, if you adopt the Government’s reading here, the… they have said that they want to try 75 military commission cases or so in the first wave.

You will then be left with 75 trials that take place without even the most basic question of what the parameters are that these commissions are to operate under.

Antonin Scalia:

Well, when you say Congress hasn’t fairly balanced it, I mean, I guess that depends upon your reading of the statute.

If, indeed, you read it the way the Government reads it, they would assert that Congress did consider these military commissions and thought that it was okay to wait until they had completed their work before full review was provided.

Neal Kumar Katyal:

But–

Antonin Scalia:

I mean, it’s sort of a… you know, a… you’re running in a circle.

Neal Kumar Katyal:

–Well, that’s precisely, Justice Scalia, our argument, that I don’t think one can consider the abstention claim… and this is what I believe both courts below have held… you can’t consider the abstention claim without deciding the underlying merits.

And if you believe that the… that Congress has fairly balanced the rights and are compliant with the UCMJ and the like, then I don’t think… then you’re reaching the merits, and there’s no abstention holding.

So, if I could turn to the merits… the merits challenges, the first thing I’d like to discuss on… is question number 1 and whether this military commission states a charge that violates the laws of war.

And we believe it doesn’t, for two essential reasons.

First, the only charge in this case is one of conspiracy.

And conspiracy has been rejected as a violation of the laws of war for… in every tribunal to consider the issue since World War II.

It has been rejected in Nuremberg, it’s been rejected in the Tokyo tribunals, it’s been rejected in the international tribunals for Rwanda and Yugoslavia, and, most importantly, it’s been rejected by the Congress of the United States, in 1997–

John Paul Stevens:

Mr. Katyal, will you help me?

Where is the conspiracy charge in the papers?

Neal Kumar Katyal:

–The charge itself, Justice Stevens, is found at 63(a) of the Petition appendix.

John Paul Stevens:

Okay, thank you very much.

Neal Kumar Katyal:

Sure.

And–

Anthony M. Kennedy:

And suppose you had a tribunal that was properly constituted, as you contend that it ought to be, and then the charge was conspiracy.

Would the… would the courts then have review before the trial proceeded?

And let’s assume that it’s a conspiracy and some other charge.

Is there some analog in ordinary criminal proceedings where you challenge, in advance, the validity of the charge?

Neal Kumar Katyal:

–Ordinarily, Justice Kennedy, the answer would be no, you wouldn’t challenge the validity of the charge.

Neal Kumar Katyal:

And, indeed, I think Councilman itself is a… is a case in which there was a charge at issue, and the question was subject matter jurisdiction.

The reason why this is different, however, is twofold.

First, the claim that Mr. Hamdan is making is that conspiracy itself falls entirely out of any authorization of Congress.

In Councilman, the question was… there was an article, Article 134 of the UCMJ, which was a criminal statute, and it had been interpreted to punish drug dealing.

And in the case the court said where… this Court said,

“We will defer as to whether the facts showed the requisite amount of drug dealing to violate the Uniform Code. “

Here, by contrast, Mr. Hamdan’s claim is that the conspiracy charge falls entirely outside of the laws of war as a whole.

Anthony M. Kennedy:

Could the tribunal interpret the conspiracy charge to mean joint enterprise, which would be closer, at least, to accepted practice in the international tribunals?

Neal Kumar Katyal:

The charge itself is one of conspiracy.

Joint enterprise is, itself, not an independent charge in international tribunals; so you can charge, for example, murder.

And your theory, in an international tribunal, of how you get to murder is joint criminal enterprise.

But you’d have to charge the underlying violation, itself.

Here–

Anthony M. Kennedy:

I’m still not sure why, if we think that there is merit to your argument that the tribunal is not properly established anyway, that you… we have to reach the conspiracy charge.

Neal Kumar Katyal:

–If you–

Anthony M. Kennedy:

And if we… and if we think that you’re wrong on that, I don’t know why that court can’t hear the conspiracy argument.

Neal Kumar Katyal:

–Well, there’s two different reasons.

The tribunal is not authorized, and that the charge doesn’t state a violation.

Now, even if we assume that the tribunal is authorized and that all of its microprocedures are authorized under the act of Congress, this… allowing this charge, conspiracy, is to open the floodgates to give the President the ability to charge whatever he wants–

David H. Souter:

Well, that’s–

Neal Kumar Katyal:

–in a military commission.

David H. Souter:

–Mr. Katyal, I mean, that’s a good argument for… from a broad policy, but isn’t there a narrower reason?

If we assume that the… that the commission is properly established for some purpose, by definition that purpose is limited.

We are not dealing here, as we would in the normal criminal case, with a court of general jurisdiction.

If we’re dealing with a court of general jurisdiction, we postpone claims like yours til the end, because we say the jurisdiction is so broad, they probably had it.

Maybe not, but we can wait.

But in a… in a… in a court of limited jurisdiction, or a commission of limited jurisdiction, we can’t indulge that presumption.

And that’s why, I thought, your claim that conspiracy is not cognizable can be raised at the beginning, because it’s inseparable from the limited jurisdiction of the court.

Am I off in left field?

Neal Kumar Katyal:

You are–

David H. Souter:

Or do you like that answer.

Neal Kumar Katyal:

–absolutely correct, Justice–

David H. Souter:

Okay.

Neal Kumar Katyal:

–Souter.

And, indeed, I would add to that that the conspiracy charge here, Justice Kennedy, is… the problem with it is compounded by the fact that the tribunal itself is charging a violation of the laws of war, when the military commission has never operated to try violations of terrorism in stateless, territoryless conflicts.

That is, it’s not just the charge, but it’s where the charge operates that we find so central, that the… that there are two different things–

Samuel A. Alito, Jr.:

But is it clear that the–

Neal Kumar Katyal:

–there’s two different problems.

Samuel A. Alito, Jr.:

–charges against your client could not be amended?

Neal Kumar Katyal:

They may be amended, yes.

Samuel A. Alito, Jr.:

Then why should we… why should there be review, before trial, of a charge that could be amended?

Neal Kumar Katyal:

Be–

Samuel A. Alito, Jr.:

There could be additional charges added by the time there’s a final decision.

Neal Kumar Katyal:

–And the… Justice Alito, the Government has had, essentially, now 4 years to get their charges together on Mr. Hamdan.

At this point, that… you know, what you have before you is the charge.

And that… and they’ve stuck with this charge, of conspiracy, which is not a violation of the laws of war.

And, indeed, the… and the… it’s not just conspiracy isn’t, but that the commission is operating in totally uncharted waters, because it’s charging a violation in a stateless, territoryless conflict, something as to which the full laws of war have never applied.

Indeed, Justice Alito, all ten people facing military commissions today, all ten indictments charge conspiracy right now.

Seven only charge conspiracy.

Samuel A. Alito, Jr.:

Isn’t this contrary to the way legal proceedings and appeals are normally handled?

You have a… essentially, a pretrial appeal concerning the validity of the charge that may not even be the final charge.

Neal Kumar Katyal:

Not in… not here, because, as, I think, both courts below indicated, this case, and his challenge, falls very much like Abney versus United States.

This is a challenge to the lawfulness of the underlying tribunal and the charge that’s against them.

Indeed, this Court, in Quirin, heard, as its first question, Does the charge state a violation of the laws of war?

That was the first thing it said had to be asked.

So, I think the… what we are doing is applying nothing more than the settled practice that has always been the case with respect to military commissions.

And it… in… the public interest here, again, just as Quirin, I think, requires some limits placed on military commissions, Justice Alito, because, otherwise, if the Government’s position is taken as the final word, it’ll give the President the ability to essentially create that blank check, for years on end, render a final decision at some point, and then that final decision will then be subject to the truncated review procedures in the DTA, which I don’t think is what Congress intended when they changed the language of the bill.

Rather, I think what they did was intend that this Court would decide the basic… apply the basic structural limits on military commissions that have always applied.

John Paul Stevens:

May I ask this question about the charge?

The charge is not just conspiracy in the abstract, it’s conspiracy to do specific things, one of which is attacking civilians and civilian objects.

John Paul Stevens:

And is it clear that the commission would not have… a military commission would not have jurisdiction to try a conspiracy to armed civilians in a war zone, for example?

Neal Kumar Katyal:

It is clear, Justice Stevens.

That is… that is precisely what the international tribunals reject.

Conspiracy is a standalone offense.

One can charge, as a war crime, attacking civilians and the like, as a pure crime, but what you can’t do is charge conspiracy.

And, indeed, the Congress of the United States, in 1997, when they wrote the War Crimes Act, essentially made that conclusion, because they defined “war crimes” with incorporating a variety of treaties–

Anthony M. Kennedy:

Well, suppose that proof were to show that there was very substantial and knowing involvement rendering him basically an accomplice or a principal, but it was… it was still found under conspiracy.

Would international law violate that?

Neal Kumar Katyal:

–If the–

Anthony M. Kennedy:

Assume that he’s been given notice of… during the… during the course of the proceedings as to what the charges specifically are as the proof is adduced.

Neal Kumar Katyal:

–Justice Kennedy, on this particular point, on conspiracy, yes, if… that you couldn’t charge some other offense, like aiding and abetting, and transmute some conspiracy charge into that.

Rather, the international law and the laws of the United States recognize you can prosecute him for aiding and abetting as a violation of whatever the specific underlying crime is, like murder or attacking civilians.

What you can’t do is use the standalone offense of conspiracy.

And here’s why.

Because the standalone offense of conspiracy is rejected by international law, because it’s too vague.

And this Court has said that the test for a violation of the laws of war is when universal agreement and practice make it a violation.

The world rejects conspiracy, because if it’s adopted it allows so many individuals to get swept up within its net.

Justice Kennedy, aiding and abetting which requires a much closer relationship between the conduct and the individual offender.

Conspiracy does not.

And so, for example, under the Government’s theory, a little old lady in Switzerland who donates money to al Qaeda, and that turns out to be a front for terrorists acts and so on, might be swept up within this broad definition of conspiracy.

And that’s why international law has so rejected the concept of conspiracy.

Samuel A. Alito, Jr.:

Well, that wouldn’t be–

Anthony M. Kennedy:

Well, let me put it this way.

If we were to find that the Geneva Convention or other settled principles of international law were controlling here, why couldn’t we just remand to the D.C. Circuit and let it figure that out?

Or let it… have the tribunal figure it out, in the first instance, assuming the tribunal is properly authorized.

Neal Kumar Katyal:

Well, it is the role of this Court to confine the tribunal to its lawful jurisdiction.

And that’s what this Court held in Quirin.

And that’s what we think you should do here.

The tribunal itself can’t be the judge of its own jurisdiction.

Anthony M. Kennedy:

Well, suppose we told the D.C. Circuit that the Geneva Convention or some other body of international law controls, and just remand to it for it to go into all these arguments?

Neal Kumar Katyal:

Again, we think, at this point, that the public interest is best served by this Court saying that conspiracy doesn’t violate… to set some limits.

After all, all… everyone facing a military commission is facing this charge.

Seven are only facing this charge.

The Government wants to put 75 of these cases through.

And it has taken 4 and a half years since the President’s military order–

John Paul Stevens:

May I ask–

Neal Kumar Katyal:

–for this case–

John Paul Stevens:

–this question?

Supposing the charge had been slightly amended.

Instead of saying,

“The criminal purpose, and conspired and agreed with Osama bin Laden to commit the following offenses. “

it said,

“It and Osama bin Laden attempted to… aided and abetted in committing the following offenses. “

Would it then be… violate the laws of war?

Neal Kumar Katyal:

–If the charge is the specific offenses themselves, not aiding and abetting, Justice Stevens–

John Paul Stevens:

Well, the specific offenses are attacking civilians and attacking civilian objects.

Neal Kumar Katyal:

–Yes, with respect to this particular claim about conspiracy, that would solve that problem.

If you say the charge is attacking civilians, and your theory of proving it is aiding and abetting the murder or the attacking of civilians–

John Paul Stevens:

And then–

Neal Kumar Katyal:

–yes.

John Paul Stevens:

–what if the trial judge who looked at the indictment or ruling on a motion to dismiss the indictment, or its equivalent at this time… said,

“Well, I’m going to construe these words “conspired or agreed” as the substantial equivalent of “aiding and abetting”. “

Would that let the charge stand?

Neal Kumar Katyal:

That would mix apples and oranges, because “conspiracy” and “aiding and abetting” are two entirely different things.

One is a standalone offense.

And the one is a theory of how to prove a violation–

John Paul Stevens:

But the language is “conspired and agreed with”.

And “agreed with” is pretty close to “tried to do it himself”.

Neal Kumar Katyal:

–It’s not, Justice Stevens, because it requires a different level of participation, and the liability is entirely different.

Because if conspiracy is accepted, you’re accepting Pinkerton liability.

Neal Kumar Katyal:

That’s what the Government’s own charge said… the Government’s own instruction said, which means that Mr. Hamdan is liable for all the acts of 9/11 and everything al Qaeda has done.

“Aiding and abetting”, as you are saying, Justice Stevens, in your hypothetical, is a much more closely tethered theory of liability, requiring a higher level of individual culpability and a totally different level of punishment.

Antonin Scalia:

As I recall the sixth amendment, you’re entitled to know the charge against you.

And you’re saying that the charge of conspiracy is not the charge of aiding and abetting.

Neal Kumar Katyal:

That is correct.

If I could turn to a second argument for why we believe this military commission is impermissible, and that is that it defies the Uniform Code of Military Justice.

The Uniform Code of Military Justice, in Article 36, sets minimal ground rules for military justice, writ large.

And it says that the President can’t act in ways that are contrary to, or inconsistent with, this chapter.

As Judge Robertson found, already we know that has happened here.

Mr. Hamdan has been kicked out of his criminal trial right at the get.

And the Government’s position is that they don’t have to abide by the UCMJ, which is a further reason, of course, why we believe that abstention isn’t appropriate, because it defies the rules set out by Congress.

We’re asking this Court to apply the minimal rules of the UCMJ to the military commissions that operate at Guantanamo Bay, because Article 2 of the UCMJ has been extended, and its protections now extend to Guantanamo Bay and protect those who are detained there.

And one of its protections is the right to be present, and that has been fundamentally violated by… already.

If I could–

Antonin Scalia:

You acknowledge the existence of things called commissions.

Or don’t you?

Neal Kumar Katyal:

–We do.

Antonin Scalia:

I mean–

Neal Kumar Katyal:

Absolutely.

Antonin Scalia:

–What is the use of them if they have to follow all of the procedures required by the UCMJ?

I mean, I thought that the whole object was to have a different procedure.

Neal Kumar Katyal:

Justice Scalia, that’s what the Government would like you to believe.

I don’t think that’s true.

The historical relationship has been that military commissions in courts martial follow the same procedures.

That’s what General Crowder said when he testified in 1916, and what this Court has quoted from his testimony.

It’s what every military treatise says.

Now, to be clear, our position is not that military commissions must follow all the rules for courts martial.

Not at all.

They must require… must follow the minimal baseline rules set in the Uniform Code of Military Justice by Congress.

They can depart from the panoply of rules, the 867 pages of rules in the Manual for Courts Martial, so long as they don’t depart from the UCMJ itself.

Neal Kumar Katyal:

Congress has answered this question, Justice Scalia, in Article 36, by saying the President does have a wide ability to depart from the rules, but he can’t depart from the fundamentals of the UCMJ.

And, indeed, that’s what–

Anthony M. Kennedy:

What fundamentals, other than personal presence, are you concerned with in this case?

Neal Kumar Katyal:

–Well–

Anthony M. Kennedy:

Or is that it–

Neal Kumar Katyal:

–Well, we do believe that the… that the entire panoply of UCMJ protection–

Anthony M. Kennedy:

–I understand–

Neal Kumar Katyal:

–is involved.

Anthony M. Kennedy:

–the nature… the appointing authority and so forth.

But so far as the right of a defendant at the proceeding–

Neal Kumar Katyal:

Well–

Anthony M. Kennedy:

–just right to be present?

Is there a requirement of prompt convening of the proceedings?

Neal Kumar Katyal:

–Absolutely.

There’s an Article 10 right for speedy charges.

There is also an Article 67 right for independent Court of Appeals for the Armed Forces review, which is something that is not guaranteed by this commission.

And so… and, indeed, was a predicate for this Court’s abstention holding in Councilman.

So, we do believe that there are… that these fundamental rights apply.

And, of course, this is just all, Justice Kennedy, default rules.

If the… if the Congress wants to pass a law to exempt military commissions from Article 36, that… they are free to do so, and that will then be… that’ll then be–

Stephen G. Breyer:

But if you have to–

Neal Kumar Katyal:

–a simpler case–

Stephen G. Breyer:

–approximately the same procedures, what’s the point of having a military commission?

I think that was implicit in Justice Scalia’s question.

So, if you go back… Revolution, Seminoles, Modoc, Mexican War, World War II… why have them?

Neal Kumar Katyal:

–Well, we had them before, because… we had them before, because we couldn’t find military court martial jurisdiction.

They were situations of absolute necessity.

The reason was that the Articles of War, for one reason or another, didn’t cover particular individuals.

And, therefore, we needed to craft a separate procedure.

But, whenever we did so, Justice Breyer, we always said that court martial rules apply.

Neal Kumar Katyal:

In 1847, which is really the first instance of a military commission, because General Washington operated under statutory charges to try spying… but in 1847, we applied court martial rules by General Order Number 1.

In the Civil War, we applied General Order Number 1 again, and it said that it would… that we needed to apply to court martial… court martial rules, because, otherwise, abuses would arise.

And, essentially, the worry is one of forum shopping, that you give the President the ability to pick a forum and define the rules.

And that… and that fundamentally open ended authority is what I believe this Court rejected in Hamdi, and it’s… and when it rejected the blank check.

Antonin Scalia:

Mr. Katyal, you’ve addressed the Detainee Treatment Act in its… in its capacity as, arguably, removing jurisdiction.

Might not the Act also function as a retroactive approval of what the President has done?

Neal Kumar Katyal:

Certainly, there’s nothing in the text of the Act itself… and even… I know this isn’t relevant for you, but for other individuals on the Court… there’s nothing in the legislative history, or even the post… even the brief filed by Senators Graham and Kyle, which suggest, in any way, that this was ratification.

But suppose it were, Justice Scalia.

Suppose it did ratify some sort of military commission.

I don’t believe that it authorized this military commission with this charge, conspiracy, in this conflict, a stateless, territoryless conflict, with these procedures, procedures that violate the UCMJ.

So, it may be that they authorized something.

But even that, I think, may be a bit hard, because, after all, what they did was authorize, as Justice Alito said, certain challenges to military commissions.

Anthony M. Kennedy:

Do you think, as a minimum, that they authorized a military commission?

Neal Kumar Katyal:

They… I think it’s perfectly… well, it’s a… it’s a… it is a possible reading to say the DTA authorized some sort of military commission.

The text doesn’t say so.

It is, of course, addressed to the jurisdiction of this Court, and not in any way to the… to the… to the… to the underlying merits.

I do think that the… that there is a… you know, a conceivable argument.

However, the reason why I think this Court, if it did decide to reach that ultimate question, should reach it against the Government, is that that kind of back door kind of… you know, approval by inference has never been sufficient when it comes to authorizing military jurisdiction, in the most awesome powers of the Government, to dispense life imprisonment and death.

That is, I think, a clearer statement would be required in this unique setting, because we aren’t talking about, after all, minor things.

We’re talking about the most grave powers of our Government, the power to dispense life imprisonment and death.

And I certainly don’t think Congress, on the basis of a few hours of debate, intended to ratify this entire apparatus.

If I could turn to question 2 and the Geneva Conventions, I’d like to start with Common Article 3 and its minimal baseline requirements that a regularly constituted court be set up, and one that dispense… that affords the rights indispensable to civilized peoples.

As Judge Williams found, below, that article does apply to Mr. Hamdan, and protects him.

It’s the most minimal rudimentary requirements that the United States Senate adhered to when it ratified the convention in 1955.

And those requirements–

Antonin Scalia:

It depends on what you mean by “regularly constituted”.

In your brief, I gather you… what you meant is that a court that was preexisting.

It doesn’t necessarily mean that.

It just… it could mean one that was set up for the occasion, but was set up for the occasion by proper procedures.

Wouldn’t that be a “regularly constituted court”?

Neal Kumar Katyal:

–Well, I think the way that it has been interpreted, “regularly constituted court”, is not an ad hoc court with ad hoc rules.

So, that is to say, Justice Scalia, if they resuscitated–

Antonin Scalia:

Well, I mean, not ad hoc in that sense,

“I’m creating one court for this defendant, another court for the other defendant. “

but setting up for the occasion, and for trying numerous defendants, a new court.

I don’t think that, just because it’s a new court, you can say that it’s not a “regularly constituted court”.

Neal Kumar Katyal:

–So long as it is, (a) independent of the executive, which is what it’s been interpreted to be, and, (b) affords the rights known to civilized peoples.

And here, we think this military commission strays from both of those… from both of those.

It’s not independent of the executive–

Ruth Bader Ginsburg:

You’ve mentioned… you’ve mentioned that the defendant has no right to appear before the tribunal.

What are the other rights recognized by all civilized people that these tribunals do not guarantee?

Neal Kumar Katyal:

–So far, Justice Ginsburg, all that we have before… you know, I think all that’s happened is the right to be present.

To look to what other rights are guaranteed by Common Article 3, you can look to Additional Protocol 1 of the Geneva Conventions, which specifies rights like appeal rights and the like.

But they’re the most minimal baseline rights.

We’re not talking about, you know, Miranda rights or something like that.

We’re talking about just a set of core ideas that every country on the world… every country in the world is supposed to dispense when they create war crimes trials.

And, even that minimal standard, the Government says they don’t want to apply here.

And why we think this is enforceable is that Mr. Hamdan is being prosecuted in the name of the laws of war.

And he has the right to invoke the Geneva Conventions defensively as a… as a way to constrain the tribunal, to say that they can’t–

Anthony M. Kennedy:

How do you want us to view his status?

Do we accept the Government’s submission that there’s probable cause to believe that he was not of… in a formal uniform, that he was not a formal combatant, but that he was aiding and abetting, or conspiring, with al Qaeda?

Can we accept that, that there’s probable cause for that?

Neal Kumar Katyal:

–No, Justice Kennedy, for two reasons.

Anthony M. Kennedy:

I mean, in… particularly based on the CSRT hearing?

Neal Kumar Katyal:

The CSRT, to my knowledge, never asked any of those–

Anthony M. Kennedy:

But you have to–

Neal Kumar Katyal:

–questions about–

Anthony M. Kennedy:

–you have to give us–

Neal Kumar Katyal:

–uniforms or–

Anthony M. Kennedy:

–a beginning point.

Anthony M. Kennedy:

You have to give us a beginning point.

Neal Kumar Katyal:

–We would love a beginning point.

And the beginning point is an Article 5 hearing, which is required by Army Regulation 190-8, in Article 5 of the Geneva Conventions.

The CSRT in no way suffices to do that.

It didn’t ask those questions about, Are… you know, uniforms, and the like, to my knowledge.

Of course, the CSRT isn’t in the record, so we don’t really know.

The Government said, below, that it had, quote, “zero effect on this case”, and didn’t introduce it.

But, be that as it may, suppose that the CSRT did decide that Mr. Hamdan is an enemy combatant.

Justice Kennedy, most enemy combatants are prisoners of war.

So, if anything, all the CSRT did was affirm Mr. Hamdan’s separate claim, apart from Common Article 3, to the full protection of the Geneva Conventions.

If I–

David H. Souter:

And that would require a determination by a different tribunal that he was not a POW, in default of which he would be treated as a POW and be entitled to a court martial?

Is that the point?

Neal Kumar Katyal:

–Yes, Justice–

David H. Souter:

Yes.

Neal Kumar Katyal:

–Souter.

If I could reserve the balance of my time.

John Paul Stevens:

Yes, you certainly may.

General Clement.

Paul D. Clement:

Justice Stevens, and may it please the Court–

The executive branch has long exercised the authority to try enemy combatants by military commissions.

That authority was part and parcel of George Washington’s authority as Commander in Chief of the Revolutionary Forces, as dramatically illustrated by the case of Major Andre.

And that authority was incorporated into the Constitution.

Congress has repeatedly recognized and sanctioned that authority.

Indeed, each time Congress has extended the jurisdiction of the court martials, Congress was at pains to emphasize that that extension did not come in derogation of the jurisdiction of military commissions.

And in its most recent action, Congress clearly did not operate as somebody who viewed the military commissions as ultra vires.

They offered no immediate review, and no review at all for charges resulting in a conviction of less than 10 years.

Of course, even more clearly, Congress’s most recent action made it clear that the courts no longer have jurisdiction over preenforcement challenges.

And it’s to that I’d like to turn first.

John Paul Stevens:

But let me just ask this question, Mr. Clement.

John Paul Stevens:

What sources of law have the commissions generally enforced over the years, beginning with George Washington and so forth?

Just Army regulations or American law or foreign law?

What are the basic sources of law that they can enforce?

Paul D. Clement:

Well, what I would say, Justice Stevens, is, they basically enforce the laws of war.

At times, there are obviously United States sources that are relevant to that.

Obviously, if you have a field manual or something that says specifically that certain offenses are triable under the law of war, that would be very instructive in the tribunals.

In certain situations that I don’t think are principally relevant here, you might also have war courts that were set up to deal with municipal offenses.

But that’s not what we have.

And then, they would look to U.S. law.

John Paul Stevens:

And what we have here is enforcement of the laws of war.

Paul D. Clement:

That is right.

And, of course, in this context, you have a controlling executive act in the form of the regulations themselves that make it clear that the executive views things like conspiracy to violate the laws of war to be actionable under the laws of war.

Now–

John Paul Stevens:

If… just one hypothetical.

Assume that the laws of war do not prohibit conspiracy.

Just assume… I know you disagree with it.

Could the President, by his action, add conspiracy as a triable offense by a commission?

Paul D. Clement:

–I think if you did that, Justice Stevens, it would present the very difficult question that this Court has never squarely addressed, which is, Does the President have some authority to try, by military commission, beyond that which Congress has joined him in?

Obviously, Article 21 of the UCMJ gives Congress’s sanction to any military commissions, to the extent they try crimes that are triable by the law of war.

So, in that sense, I think, as long as this Court construes consistent with over 100 years of United States tradition and history, the conspiracy to commit a law… a violation of the law of war is a war crime, then you don’t have to reach that–

John Paul Stevens:

Well, if–

Paul D. Clement:

–difficult issue.

John Paul Stevens:

–It’s easy if it is a war crime.

I’m trying to wrestle with the question of, If we concluded that it were not, and just… and I’m asking… can the question add an additional crime that the commission could try?

Paul D. Clement:

I think he–

John Paul Stevens:

You think he could.

Paul D. Clement:

–I think we would take the position that he could, as a matter of pure constitutional power.

I don’t think, though… he is not active in this case on the theory that conspiracy is outside of the laws of war.

He’s acted inconsistent with 150 years of tradition.

John Paul Stevens:

So, the basic position you’re asserting is that we have… that the… this commission intends to try a violation of the laws of war.

John Paul Stevens:

And do the laws of war then have any application to the procedures that they have to follow?

Paul D. Clement:

Yes.

I mean, in the sense that I think that if there were… there… the other side is certainly able to argue, before the military commissions, that certain procedural provisions or the like are prohibited by the law of war or give them some greater entitlement.

Now, as this Court has recognized in cases like Madsen, I don’t think that the law of war is… you know, extensively regulates procedure.

And, indeed, as the Madsen Court recognized, Congress’s approach to military commissions has been radically different than its approach to court martials.

In court martials, they regulate every jot and tittle of the procedure.

And if the UCMJ and its provisions for court martials applies, then the defendants are going to get not just Miranda, but Miranda plus, and a whole panoply of rights.

If, on the other hand, this Court follows the precedents in Madsen, it will recognize that only those nine provisions of the UCMJ that expressly reference military commissions will apply, and the rest is left to a much more common law, war court approach, where there’s much greater flexibility.

David H. Souter:

What do you… what do you make of the argument that Mr. Katyal just alluded to, that if you take the… as you do… take the position that the commissions are operating under the laws of war, you’ve got to accept that one law of war here is the Geneva Convention right to a presumption of POW status unless there is a determination by a competent tribunal otherwise, with the… among other things, the rights that that carries.

I mean, how… do you… why not… why don’t you go from the frying pan into the fire, in effect, when you take the position that the laws of war are what the tribunal is applying?

Paul D. Clement:

Well, Justice Souter, I don’t think there’s any frying pan effect or fire effect, precisely because what you have with respect to the claim that the Geneva Conventions applies… okay, that claim could be brought to the military commissions, but they could adjudicate it and say that the Geneva Conventions don’t apply here, for any number of reasons.

And I think that this idea that there needs to be an Article 5 proceeding–

David H. Souter:

Well, but you’re… are you saying that the… that the commission will adjudicate POW status under the Geneva Convention?

In other words, are you stipulating that the Geneva Convention does apply, so that the only argument left between you and Mr. Katyal would be whether the commission itself was a competent tribunal to make the determination?

Is that your position?

Paul D. Clement:

–Well, I don’t think so, Justice Souter.

I mean, I think the disagreement is more fundamental than that.

What I would say is, a claim could be brought in the tribunal that the Geneva Conventions apply.

Now, just because the Geneva Convention does apply–

David H. Souter:

Well, do you agree that it applies as part of the law of war?

Paul D. Clement:

–Well, I don’t think, consistent with the position of the executive, that the Geneva Convention applies in this particular conflict.

David H. Souter:

But that, I guess, is the problem that I’m having.

For purposes of determining the domestic authority to set up a commission, you say, the President is operating under the laws of war recognized by Congress, but for purposes of a claim to status, and, hence, the procedural rights that go with that status, you’re saying the laws of war don’t apply.

And I don’t see how you can have it both ways.

Paul D. Clement:

We’re not trying to have it both ways, Justice Souter.

The fact that the Geneva Conventions are part of the law of war doesn’t mean that the Petitioner is entitled to any protection under those conventions.

And–

David H. Souter:

But he is entitled to make a claim under them to determine whether, on the merits, he is entitled.

Isn’t that entailed by your position?

Paul D. Clement:

–I think it is, Your Honor, but let me just say that that’s a claim that he could have brought before the CSRTs, and that is a claim he can still bring before the military commissions.

Anthony M. Kennedy:

But I have–

Paul D. Clement:

Lawful–

Anthony M. Kennedy:

–I have… I have trouble with the argument that… insofar as he says there is a structural invalidity to the military commission, that he brings that before the commission.

And the historic office of habeas is to test whether or not you are being tried by a lawful tribunal.

And he says, under the Geneva Convention, as you know, that it isn’t.

Paul D. Clement:

–Well, and we disagree with those claims.

We think that most of those claims… to the extent that he thinks some procedural requirement is provided either by the Geneva Convention, if applicable… but we don’t think it would be… and that argument would be made; but, if by some other, sort of, principle of the law or that a procedure is required–

Anthony M. Kennedy:

Well, it’s not some–

Paul D. Clement:

–he could… he could make that argument.

Anthony M. Kennedy:

–procedural… it’s the structural requirement of the composition and the… and the appointing origins of the court.

Paul D. Clement:

Well, again, I think he could… he could bring that claim.

I don’t think it would be well taken by the… by the commission.

I don’t think it’s a valid claim.

I also don’t think, if… there’s any reason why that claim has to be brought at this stage in the procedure.

We think that abstention–

Antonin Scalia:

I thought–

Paul D. Clement:

–principles–

Antonin Scalia:

–I thought we… I thought we established, earlier… somebody told me… that, in the normal criminal suit, even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately, it’s adjudicated at the conclusion of the proceeding.

Paul D. Clement:

–Well, of course that’s true.

And–

Antonin Scalia:

We–

Paul D. Clement:

–also–

Antonin Scalia:

–We don’t… we don’t intervene on habeas corpus when somebody says that the panel is improperly constituted.

We wait until the proceeding’s terminated, normally.

Paul D. Clement:

–That’s exactly right, Justice Scalia.

And this Court made clear that it doesn’t intervene–

Anthony M. Kennedy:

Well, is–

Paul D. Clement:

–even when a U.S.–

Anthony M. Kennedy:

–is that… is that true?

If a group of people decide they’re going to try somebody, we wait until that group of people finishes the trial before the Court… before habeas intervenes to determine the authority of the tribunal to hold and to try?

Paul D. Clement:

–Well, with respect, Justice Kennedy, this isn’t a “group of people”.

This is the President invoking an authority that he’s exercised in virtually every war that we’ve had.

It’s something that was recognized in the Civil War, something in the World War II that this Court approved.

Anthony M. Kennedy:

I had thought that the historic function of habeas is to… one of its functions… is to test the jurisdiction and the legitimacy of a court.

Paul D. Clement:

Well, but… habeas corpus generally doesn’t give a right to a pre enforcement challenge.

And this Court, for example, in Schlesinger against Councilman–

Antonin Scalia:

To a forum that is prima facie properly constituted.

I mean, it… this is not a… you know, a necktie party.

Where it parades as a court, and it’s been constituted as a court, we normally wait until the proceeding’s completed.

Paul D. Clement:

–Well, that’s exactly right, Justice Scalia.

And Congress has spoken to this precise issue in the DTA.

Whatever was the question about applying–

John Paul Stevens:

But, Mr. Clement–

Paul D. Clement:

–judge made–

John Paul Stevens:

–if you assume that the laws of war apply, and perhaps the treaty applies, isn’t the issue whether this is a “group of people”, on the one hand, or a “regularly constituted court”, on the other?

Paul D. Clement:

–Well, I mean, I don’t really think there’s any serious dispute about which it is.

I mean, this is something that is–

John Paul Stevens:

Well, they argue very strenuously that this is really just a “group of people”–

Paul D. Clement:

–Well… and if this Court–

John Paul Stevens:

–because it’s not a “regularly constituted court” within the meaning of the treaty.

Paul D. Clement:

–Well, Justice Stevens, I think that even if a court might have had jurisdiction to hear just that issue and–

John Paul Stevens:

Yes.

Paul D. Clement:

–nothing else before the DTA, Congress has now spoken, and Congress has made it clear that, whatever else is true, these military commission proceedings can proceed, and exclusive review can be done after the fact, after conviction, in the D.C. Circuit.

David H. Souter:

Exclusive review of what?

I don’t see that the… that the… that the DTA preserves a right to review of the very issue that they want to raise here.

Paul D. Clement:

Well, I think I disagree, at least–

David H. Souter:

They can… they can… they can review their enemy combatant determination.

They can review the consistency of the procedure of the court with whatever law applies.

But I don’t see that there is a clear reservation of right to get to the very basic question of the… of the constitution of the court itself.

Paul D. Clement:

–Oh, I disagree, Justice Souter.

Paul D. Clement:

E(3) specifically preserves the claim that the commissions were not, and the procedures were not, consistent with the Constitution and laws of the United States–

David H. Souter:

So, you’re reading–

Paul D. Clement:

–to the extent–

David H. Souter:

–procedures–

Paul D. Clement:

–they’re pledgeable.

David H. Souter:

–to encompass the very act constituting the court itself?

Is that the Government’s… I mean, are you going to go on the record–

Paul D. Clement:

Sure, if they want to come in and argue that there is a violation of Article 21 of the UCMJ, or Article 36 of the UCMJ, after their conviction, they are perfectly free to do that–

Stephen G. Breyer:

It’s hard for me to–

Paul D. Clement:

–under E(3), but–

Stephen G. Breyer:

–see that with the language of this, because the language that you’re talking about refers to “such standards”.

(a).

That military order is an order of August 31st which talks about procedures.

It’s not the order that sets up the commission, which is an order issued the preceding November.

Rather, this language seems to mean what it says.

But even if it didn’t… even if it didn’t, wouldn’t your reading raise a terrifically difficult constitutional question, if not this case, in cases that are pending right now, where prisoners in Guantanamo are claiming that they have not yet had the CSRT hearing, they’re claiming, one or two,

“We had it, and we’re still here. “

“We won, but we’re still here. “

They’re claiming,

“We don’t want to be sent back to Qatar. “

And they’re claiming, some, that they were tortured.

All right?

Now, if we could avoid the case with your interpretation here, and avoid that constitutional question… we can’t avoid it.

So, my question is, one, How is what you’re arguing consistent with the language I quoted?

And, two, How could it, if we accepted your interpretation, possibly avoid the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this Court of jurisdiction in habeas cases?

Paul D. Clement:

–Well, Justice Breyer, let me answer both pieces of that.

I certainly think that such standards and procedures to reach the final decision are consistent with the Constitution and laws of the United States.

There is a reference to the first military order.

I believe there’s also a reference to any other subsequent orders implementing that.

All of that, together, implements the November 13th order.

Paul D. Clement:

So, I would think that there is… it is very easy to read this language to allow any challenge that is being brought here, with the possible exception of the treaty challenge.

Ruth Bader Ginsburg:

Would you–

Paul D. Clement:

And–

Ruth Bader Ginsburg:

–Would you–

Paul D. Clement:

–I think the language is capacious enough if the treaty challenge is what you thought was very important, the D.C. Circuit, at the end of the day, could decide whether or not there is a requirement that the treaty challenge be brought.

Ruth Bader Ginsburg:

–General Clement, if you can straighten me out on the piece that you read about

“consistent with the Constitution and laws of the United States. “

I thought that it was the Government’s position that these enemy combatants do not have any rights under the Constitution and laws of the United States.

Paul D. Clement:

That is true, Justice Ginsburg.

And Congress, in this Act, was very careful to basically write without prejudice to the answer to that question.

So, we would have that argument.

The other side would have their argument.

What this Act provides that we don’t have any argument on, that was something that wasn’t before this Court, say, in the Rasul decision, was the fact that the procedures that the military has promulgated are going to be enforceable under this exclusive review provision.

So, there at least will be some law to apply now under this exclusive review provision.

Ruth Bader Ginsburg:

But what–

Paul D. Clement:

So, that–

Ruth Bader Ginsburg:

–But how will the question, whether the laws in the United… and Constitution… of the United States, whether these petitioners have any claim to state under the laws and Constitution of the United States?

Because as I read… the review that’s provided doesn’t open up that question.

It’s a very narrow review that’s given to the D.C. Circuit.

Paul D. Clement:

–Well, Justice Ginsburg, I certainly think that Petitioner will be up there arguing that Eisentrager is no longer good law, not just as a statutory matter, as a constitutional matter, and those arguments will be made.

Without respect to that, certainly the arguments about Article 21 and Article 36, that are very much at the centerpiece of their argument here today, would also be available to the D.C. Circuit.

And if there’s some constitutional requirement that that review be slightly broader or slightly narrower, that seems like something that can better be adjudicated in the context of a concrete case at the point that that review is sought.

Ruth Bader Ginsburg:

Is there–

Paul D. Clement:

But one thing I–

Ruth Bader Ginsburg:

–Is there… is there any review in this Court, following the D.C. Circuit, either the original classification or the conviction… is there… does this Court have any part in the scheme?

Paul D. Clement:

–Yes, Justice Ginsburg, there would be 1254 review.

Once the provision is in the Court of Appeals, then the case would be under… under E(3), the review provision… then the case would be in the Court of Appeals for purposes of this Court’s 1254 jurisdiction.

Stephen G. Breyer:

I still don’t see the answer to my question, which had two parts.

As to the language, (a) which is what’s cross referenced, refers to Military Commission Order Number 1, August 31, 2005, or any successor military order.

The order, as I understand it, that’s created the commission by the President, is an order which was November 13, 2001, not a successor to 2005.

Stephen G. Breyer:

But leaving the language aside, what I’m mostly interested in, because I think your interpretation inevitably creates it, is, What is the answer to the claim that it is not constitutional for Congress, without suspending the writ of habeas corpus, to accomplish the same result by removing jurisdiction from the courts in a significant number of cases, even one?

Paul D. Clement:

Well, Justice Breyer, let me answer that question in two parts, which is to say that I think that this case, and most of the cases, don’t raise a serious Suspension Clause problem, for the simple reason that I think deferring review or channeling it to the Court of Appeals does not amount to a suspension.

Stephen G. Breyer:

I listed four sets of cases that I don’t see how you could possibly shoehorn into E(2) and E(3), even if you are able to shoehorn this one.

And my language was designed to make you see how difficult it is.

Paul D. Clement:

Well, but–

Stephen G. Breyer:

But I listed four that I don’t see how anybody could shoehorn into that.

Paul D. Clement:

–But, with respect, Justice Breyer, I think that cuts both ways, because I don’t think there’s any particular interpretation of these provisions on the table before this Court that’s going to eliminate those potential Suspension Clause issues.

David H. Souter:

–But the whole point, it seems to me, of the argument, is, Should we not consider the significance of those very questions, because, if we don’t, as Justice Breyer said, at the end of the day, as you describe it, we will have to face the serious constitutional question of whether Congress can, in fact, limit jurisdiction without suspending habeas corpus?

The whole point is to grapple with them now, and to… and to treat them in a way that allows for this adjudication, so that we avoid this constitutional difficulty tomorrow.

Paul D. Clement:

Well, Justice Souter, first of all, I would think general principles of constitutional avoidance would say deferring the constitutional question is a good thing, not a bad thing.

The one point I would–

David H. Souter:

We may not have to reach the constitutional question.

That’s what… that’s what constitutional avoidance hopes for.

Paul D. Clement:

–Right.

But I don’t see any argument on the other side that’s really a constitutional avoidance argument.

Their principal argument is–

Stephen G. Breyer:

No, the argument–

Paul D. Clement:

–don’t apply this–

Stephen G. Breyer:

–the other side… if you want the argument, the other side is, there are several hundred cases already pending.

And, therefore, if we accept your interpretation, we know we have to reach the constitutional argument.

If we reject your interpretation, since all these cases, several hundred of them, are already there, it might be, new ones won’t be brought.

But, of course, “new ones won’t” might.

And, therefore, what is your answer to–

Paul D. Clement:

–Well–

Stephen G. Breyer:

–the question that this is unconstitutional… if not here, in other places?

Paul D. Clement:

–And, Justice Breyer, what I would say is that our interpretation basically provides for pending claims exactly the way that Congress did.

With respect to any future claims that might be brought, there may or may not be a constitutional question.

And if I could turn to our interpretation of the DTA, it’s the only one that really, I think, reads the various provisions in the statute in harmony.

Now, this Court’s decision in Bruner, and in a host of other cases, says that when Congress eliminates jurisdiction, pending cases fall, unless there’s a savings clause.

The closest thing to a savings clause in the statute, in E(1), is the provision that says 1005> [“].

Paul D. Clement:

And I think that’s important, because if Congress wanted to put in a savings clause of the kind that this Court seems to refer to in Bruner, and that would certainly be consistent with Senator Levin’s intent, it would have been very easy.

Instead of saying 1005> [“], they could have said “except for pending cases”.

The choice is important, because what does Section 1005 provide?

It provides the exclusive review in E(2) and E(3).

And then, H(2), in very complementary fashion, says that, just in case there’s any question about it, those provisions on E(2) and E(3) apply to pending claims governed by those sections.

I think every word’s important.

It doesn’t say “pending cases”, it says “pending claims”.

Congress understood two important things.

There were no cases currently pending under E(2) and E(3), because Congress was creating E(2) and E(3).

It also knew that most of the cases before the D.C. Courts had some claims that were pure challenges to the final ccert determination and other claims.

So, what H(2) says is… H(2) says that, to the extent those cases involve claims governed by E(2) and E(3), they are preserved under E(2) and E(3); otherwise, this… there’s no savings clause that covers those claims, and their jurisdiction is removed.

The–

John Paul Stevens:

May I ask–

Paul D. Clement:

–retroactivity aspect… I’m sorry.

John Paul Stevens:

–May I just ask this, to clarify?

When they do take some jurisdiction of some habeas corpus claims, do you defend that, in part, as a permissible exercise of the power to suspend the writ, or do you say it is not a suspension of the writ?

Paul D. Clement:

I think both, ultimately.

I mean, I don’t think–

John Paul Stevens:

Well, it can’t be both.

[Laughter]

Paul D. Clement:

–Well, I… I don’t see why I can’t have alternative arguments here, as for anywhere else, Justice Stevens.

We think that Congress, in this action, did not do anything that triggers the suspension of the writ.

But if you think that–

John Paul Stevens:

Well, that–

Paul D. Clement:

–it did, I think that–

John Paul Stevens:

–that’s your position, they did not suspend the writ.

You’re not arguing that it’s a justifiable suspension of the writ.

Paul D. Clement:

–Well, I think the terms of the Suspension Clause would be satisfied here because of the exigencies of 9/11.

If the question is, Am I taking the position that Congress consciously thought that it was suspending the writ?

then I would say no.

John Paul Stevens:

Okay.

Paul D. Clement:

And if you think, in order for there be to a… to be a valid suspension, Congress has to do it consciously, then I think you could see why the arguments are mutually exclusive.

My view would be that if Congress, sort of, stumbles upon a suspension of the writ, but the preconditions are satisfied, that would still be constitutionally valid.

So, I think that may be the disagreement.

David H. Souter:

Isn’t there a–

Paul D. Clement:

I mean–

David H. Souter:

–Isn’t there a pretty good argument that a suspension of the writ of Congress is just about the most stupendously significant act that the Congress of the United States can take?

And, therefore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?

Paul D. Clement:

–Well, a couple of things, Justice Souter.

I would agree with you if what we were talking about is suspending the right as to citizens within the Continental United States, but all Congress did here is restore the law to the understanding of the law that had prevailed for 200 years.

Now, this Court obviously took a different view–

David H. Souter:

If we have to–

Paul D. Clement:

–in Rasul.

David H. Souter:

–get to the issue, in accordance with Justice Breyer’s question, whether or not the writ of habeas corpus was suspended, you are leaving us with the position of the United States that the Congress may validly suspend it inadvertently.

Is that really your position?

Paul D. Clement:

I think at least if you’re talking about the extension of the writ to enemy combatants–

David H. Souter:

The writ is the–

Paul D. Clement:

–held outside–

David H. Souter:

–The writ is the–

Paul D. Clement:

–the territory of the United States–

David H. Souter:

–Now, wait a minute.

The writ is the writ.

Paul D. Clement:

–Okay.

David H. Souter:

There are not two writs of habeas corpus for some cases and for other cases.

The rights that… the rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus.

And it seems to me that the position you have taken is that if, at the end of the day, we have to reach the question that Justice Breyer described, the answer to that question may be,

“Yes, the writ of habeas corpus was suspended by inadvertence. “

“Congress did not intend to do it. “

Is that really your position?

Paul D. Clement:

No, Justice Souter.

Paul D. Clement:

There’s no… my point is not inadvertence.

It’s whether they have to say or incant any magic words that they are now invoking the power–

Antonin Scalia:

They could surely–

Paul D. Clement:

–to suspend the writ.

Antonin Scalia:

–set forth a procedure which amounts to a suspension of the writ.

And if that procedure is done in a state of insurrection or invasion, that would constitute a suspension of the writ, even though they don’t say,

“We are suspending the writ of habeas corpus. “

Paul D. Clement:

That is my point.

And there’s nothing inadvertent here–

David H. Souter:

Is it also your point when there is no insurrection or invasion?

Paul D. Clement:

–Well, then any effort to suspend the writ would be invalid.

But this is not a case where there’s any question of–

David H. Souter:

Perhaps that’s something that a court ought to inquire into when it gets into the question of congressional intent.

Paul D. Clement:

–I don’t think–

David H. Souter:

And how specific–

Paul D. Clement:

–I disagree with that.

David H. Souter:

–that intent–

Paul D. Clement:

I guess my point would–

David H. Souter:

–and how specific that intent must be.

Paul D. Clement:

–I don’t think I disagree with that.

But there’s two separate points here, is that… one is, Does Congress have to say,

“We are now suspending the writ under our Suspension Clause? “

And I don’t think there’s any call to say that they have to do that.

Obviously, in cases like St. Cyr, this Court has been very clear to say,

“Congress obviously can’t stumble upon the Habeas Clause. “

David H. Souter:

Okay.

Let’s–

Paul D. Clement:

But that’s not–

David H. Souter:

–Let’s–

Paul D. Clement:

–at issue here.

David H. Souter:

–Let’s assume we do not have a magic words requirement.

Given the significance of suspending the writ of habeas corpus, should we not have a pretty clear statement requirement?

Paul D. Clement:

Yes.

And there’s no question that Congress, here, tried to amend the habeas statute.

This is not like St. Cyr, where they didn’t go after 2241 in terms.

There’s nothing subtle about this statute with respect to the clarity with which it speaks–

David H. Souter:

There may be nothing–

Paul D. Clement:

–to the habeas statute.

David H. Souter:

–subtle about the statute, but there is something very silent about the statute as to whether Congress understood that it was… that it was acting under its authority to suspend the writ of habeas corpus.

And, at the very least, that unclarity is manifested by the effective date provision.

H(1) doesn’t have the language that it had before the amendment.

Therefore, it seems to me, there would be some difficulty, if we have to get to the question, in finding a clear intent on the part of Congress to suspend the writ under its Article I power.

Paul D. Clement:

With respect, Justice Souter, I don’t think making a retroactivity analysis or holding here is going to spare you the trouble of dealing with the Suspension Clause argument.

I mean, in St. Cyr, it’s worth noting that this Court addressed the specificity with which the statute applied separately from the retroactivity question.

Here, to take the first question first, there’s no question, this wolf comes as a wolf.

Congress was going after 2241.

It clearly did that.

All of E(1)–

David H. Souter:

It comes–

Paul D. Clement:

–is a new subsection.

David H. Souter:

–It comes as a wolf under H(2), but the wolf is silent under H(1), and the wolf used to speak under H(1), and it had its teeth taken out.

[Laughter]

Paul D. Clement:

With respect, Justice Souter, H(1) never spoke to the question.

An earlier provision, D(1), had very different language, in an earlier provision of the statute, that spoke with greater clarity.

I’ll grant–

David H. Souter:

And that’s–

Paul D. Clement:

–you that.

David H. Souter:

–gone.

Paul D. Clement:

That’s gone.

But just because Congress could have made it clearer doesn’t mean that the Government loses here.

David H. Souter:

The very fact–

Paul D. Clement:

Senator–

David H. Souter:

–that Congress chose to remove the clarity of the prior provision is of no significance?

Paul D. Clement:

–It’s not of dispositive significance, Justice Souter.

Antonin Scalia:

I don’t think Congress chose to do that.

One house of Congress chose to do it.

We don’t know what the other house thought, and we don’t know what the President thought.

Paul D. Clement:

That’s a very fair point, Justice Scalia.

But even to get at the very… what happened here is very analogous to the legislative evolution this Court found unilluminating in Martin against Haddocks.

There, the attorneys fees provision you had before it… before you, used to be in 802 of the statute, which was expressly applicable to pending cases.

Congress moved it out into its own separate section that didn’t expressly apply to pending cases.

David H. Souter:

What–

Paul D. Clement:

This Court did not–

David H. Souter:

–Whatever may be the standard of due care for courts in reviewing acts of Congress with respect to attorneys fees, it doesn’t reach the level that, it seems to me, is incumbent on us when we’re talking about suspending the writ of habeas corpus.

Paul D. Clement:

–I don’t disagree with that, Justice Souter, but there’s no special habeas retroactivity law.

There is a special rule, under St. Cyr, for habeas, but we amply satisfy that, because–

David H. Souter:

Can–

Paul D. Clement:

–22–

David H. Souter:

–Yes.

Paul D. Clement:

–this whole thing is a 2241(e) new section.

So, this is all about amending habeas.

Ruth Bader Ginsburg:

May I ask you another question about the clarity with which Congress spoke?

This law was proposed and enacted some weeks after this Court granted cert in this very case.

It is an extraordinary act, I think, to withdraw jurisdiction from this Court in a pending case.

Congress didn’t say, explicitly, it was doing that.

It hasn’t done it, as far as I know, since McArdle.

But there Congress said,

“We are withdrawing jurisdiction in this very case. “

They didn’t say that here.

So, why should we assume that Congress withdraw our jurisdiction to hear this case once the case was already lodged here?

Paul D. Clement:

I think the answer, Justice Ginsburg, is that, you’re right, this isn’t like ex parte McArdle.

What made ex parte McArdle so unique is, Congress went after this Court’s appellate jurisdiction, and that alone.

What Congress has done here, which is not that unusual, and it’s certainly happened several times since McArdle, is that the Court has modified the jurisdiction of all the courts, and that has had the effect of eliminating jurisdiction in this Court over a pending case.

Anthony M. Kennedy:

Mr.–

Paul D. Clement:

That’s happened any number of times.

The Guagliardo cases that we cite in our brief provide one example.

And as Justice Holmes made the point there, it’s not a situation where you go after this Court’s appellate jurisdiction, as such.

There, it’s a situation, as Justice Holmes put it, that, when the root is cut, the branches fall; when the District Court loses jurisdiction over these cases, then this Court loses jurisdiction.

But it’s much less of an affront to this Court than the kind of statute that Congress passed in the McArdle situation.

Anthony M. Kennedy:

–Mr. Clement, I, for one, have lost track of your time.

I’m interested in your arguments on the… on the legitimacy and the regularity of these commissions.

Paul D. Clement:

And if I could talk to various aspects of that, I’m happy–

Stephen G. Breyer:

Can I put the–

Paul D. Clement:

–to do so.

Stephen G. Breyer:

–that issue in… don’t… ignore my question, which is the same as Justice Kennedy’s, if it doesn’t help.

I’m trying to focus this.

And, in my mind, I take their argument as saying,

“Look, you want to try a war crime. “

“You want to say this is a war crimes tribunal. “

“One, this is not a war, at least not an ordinary war. “

“Two, it’s not a war crime, because that doesn’t fall under international law. “

“And, three, it’s not a war crime tribunal or commission, because no emergency, not on the battlefield, civil courts are open, there is no military commander asking for it, it’s not in any of those in other respects, like past history. “

“And if the President can do this, well, then he can set up commissions to go to Toledo, and, in Toledo, pick up an alien, and not have any trial at all, except before that special commission. “

Now, I’ve tried to summarize a whole bunch of points for you to get at, as you wish.

Paul D. Clement:

Let me try to hit a couple–

[Laughter]

Let me try to hit a couple of highlights.

Antonin Scalia:

I’ll be interested in your answer, if you can get it out.

[Laughter]

Paul D. Clement:

Let me try to hit a couple of highlights.

Paul D. Clement:

This is much more of a call for military commissions in a real war than, certainly, the use of military commissions against the Medoc Indians or any number of other instances in which the President has availed himself of this authority in the past.

I think the events of 9/11 speak to the fact that this is a war where the laws of war are involved.

As to whether or not the law of war encompasses the crime of conspiracy to violate the laws of war, we think that is clearly established.

That is something that the United States treated as a valid war crime in the Civil War.

That is something that the United States treated as a valid war crime in World War II.

I would invite you, as to the former, to look at Winthrop’s Treatise, page 839, note 5.

He makes it very clear that those conspiracies are not just conspiracies of municipal law, what he called “of the first class”, but they included the second class, which are classic war crimes.

The most prominent examples are the Lincoln conspirators and a conspiracy at Andersonville Prison to deny POWs their lawful rights.

Clearly, those are classic war crimes.

In World War II, of course, conspiracy was also charged.

And this Court saw it in the Kearing case, although it didn’t reach that element of the charge.

Now, I think it’s very important to understand that history, because the most relevant text on this question is Article 21’s reference to the law of war.

And as this Court was crystal clear in the Madsen case, what that reference is, is Congress’s effort, when it extended the jurisdiction of the courts martials to include more and more crimes, that it didn’t want to crowd out the military jurisdiction of the military commissions just because they had concurrent jurisdiction.

And this Court, in Madsen, said what Congress authorized was the jurisdiction of the military commissions as it existed in 1916, and then presumably again when it passed Article 21 of the UCMJ, the jurisdiction that existed as of 1950.

Well, in 1960, you could try conspiracies to violate the law of war.

In 1950, you could violate conspiracies to the law of war.

So, now let me try to get to the procedures that would be applicable.

The argument that’s made here is an extraordinary one, that Article 36, when it says that military commissions can deviate from the laws of evidence, to the extent the President determines necessary, except that it must apply to the… comply with the provisions of the UCMJ.

Clearly, what that provision means is the provisions of the UCMJ that specifically impose requirements on the military commissions.

And there are nine of them.

And they impose some… certain minimum rules.

But to say that that provision incorporates all of the UCMJ provisions that put much higher requirements on courts martials, is to violate this Court’s Madsen decision, which clearly recognized that there were differences between court martials and military commissions.

And, although that was an act… that was a case that addressed the articles of war, Article 38 is identical to Article 36(a) of the UCMJ, so that’s not a difference that matters.

And, if I could say, the other thing is, that just violates any normal principle of statutory construction, because then the nine express references to the military commissions are rendered utterly superfluous.

Clearly, what Congress had in mind was that,

“You must comply with those provisions of the UCMJ that apply specifically to the military commissions. “

If I could make this point clear, because I think it’s helpful in reading the past cases, what made Yamashita and other of the World War II cases so difficult is that the President in that situation constituted commissions that violated even the procedural rules that the articles of war made specifically applicable to the commissions.

And so, if you look, for example, at Justice Rutledge’s dissent in the Yamashita case, he was at pains to emphasize that very few of the provisions of the articles of war applied to military commissions.

And the difficulty was that the… that the military, in that case, was not complying with even those provisions that specifically applied to military commissions by terms.

That’s not an issue here.

Paul D. Clement:

These military commissions comply with all of the provisions of the UCMJ that are specifically addressed to military commissions.

So, I just don’t think there’s a procedural problem here.

The import of extending Article 2 jurisdiction to new individuals doesn’t mean that anything in Yamashita, as to this point, is really no… is still relevant.

What that does is, it takes away the argument… to the extent that these individuals are within Article 2, it takes away the argument that the President doesn’t have to even comply with those provisions of the UCMJ that are expressly directed to the military commissions.

But that’s not an argument we’re making here.

The argument on the other side of this is really that when Congress specifies that nine rules apply to military commissions, and everything else applies to courts martials, that somehow all of them have to apply to the military commissions.

And as Justice Scalia’s question alluded to earlier, in order to accept that argument, you really have to believe that what Congress was doing when it was carefully preserving the military… the jurisdiction of the military commissions was simply to preserve the option of calling something that had to comply with every single statutory requirement in the court martials.

They got to label it something else.

They got to label it a “military commission”.

Clearly, if you look at the legislative history of Article of War 15 and Article 21, as they were developed in the Madsen decision and discussed in the authoritative testimony of General Crowder, that’s exactly what wasn’t going on.

They wanted to make sure that this argument, that as we get more and more things that come within the military jurisdiction of the courts martials, that somehow we’re cutting back on the military commissions.

That’s not what they wanted.

The next thing that may be lurking in the question is the question of, What about the Geneva Conventions?

And I think that, very importantly, we have arguments that we have surfaced in our briefs that the Geneva Conventions do not provide relief in these circumstances, that they do not apply, for various reasons.

But the first question, at the outset, is whether this Court is going to overrule that portion of Eisentrager that basically said the Geneva Conventions are not judicially enforceable.

Now, of course, this Court can say,

“That was the ’29 Convention, and this is the 1949 Convention. “

But, as the Court of Appeals correctly determined–

John Paul Stevens:

And there was a footnote dicta.

Paul D. Clement:

–Well, I don’t think it was dicta, Justice Stevens.

If there’s one thing I think the Eisentrager decision has, it’s an awful lot of alternative holdings.

And–

[Laughter]

–Justice Black was concerned about that, and said,

“What are you doing reaching the merits when you have, you know, said there’s no jurisdiction? “

But the Court, as a holding, said that the Geneva Conventions of 1929 did not apply.

There aren’t any material differences about 1949 Conventions.

And I ask you to think about why that makes sense.

Because the 1949 Geneva Conventions were being negotiated contemporaneously with this Court’s decision in Eisentrager.

And even if you think the rule is different today, at that point, Justice Jackson was quite correct that the idea that an enemy combatant would get access to the domestic courts of a detaining power was absolutely absurd.

Paul D. Clement:

And so, what the… the framers of the Geneva Convention recognized that they were dealing with a group of people that were uniquely vulnerable.

So, they went to great pains to make sure there were mechanisms to enforce their rights.

And so, there are various provisions for party to party enforcement.

There are various provisions for getting the protecting powers, which is now a role basically taken over by the ICRC, to get access to the detainees and to provide other mediating effects.

So, what you have is a treaty that’s really written against the backdrop, that of course these people aren’t going to be able to get to the domestic courts of their detaining… the detaining power.

If you look at the treaty, and read it as a whole, I think it’s almost impossible to read it as applying judicially enforceable rights in the domestic courts.

The constant–

Stephen G. Breyer:

Does it… does it… does it define the contours, along with other relevant international sources, of the meaning of the statutory words “laws of war”.

He’s being charged with a violation of the laws of war in both statutes, like… what is it +/?

2240… 2441, in Quirin.

To get the meaning of that term, the courts looked to other law.

Anthony M. Kennedy:

And, in particular, why isn’t he part of Common Article 3 under the Geneva Convention, as Judge Williams found?

That’s part of the same question.

Paul D. Clement:

–Well, Judge Williams found that, you know, Common Article 3 was applicable here.

I don’t know why that the Common Article 3, and nothing else would be judicially enforceable.

And I don’t read his opinion as saying otherwise.

I think he still took the view that the entirety of the Geneva Conventions were not judicially enforceable.

Now, I take it that the thrust of the question, though, is, Don’t these Geneva Conventions, even if they’re not applicable for one reason or another, don’t they form the background of some sort of customary international law that influences what… how we should interpret the word “law of war” in the statute?

And I would say, at a minimum, if there is some role for customary international law here, it has to, consistently with The Paquete Habana case, take into account and give due weight to a controlling executive act.

Here, the President has determined, for example, that conspiracy is an actionable violation of the law of war that can be tried in front of these commissions.

He’s made that clear.

He’s also made clear that these procedures are sufficient and supply the rights.

And so, I think that has to take… be taken into account into the analysis.

I think, also, since Article 21 is the most logical place you would… you would look to any of this as the law of war, I think it’s important to understand that I would read that as incorporating some question about what kind of crimes can be brought in this jurisdiction.

Stephen G. Breyer:

Is it the President, and not Congress, defining the content of the law, the criminal law, under which a person will be tried?

Isn’t there a “separation of powers” problem there?

Paul D. Clement:

I sure hope not, Justice Breyer, because that’s been the tradition for over 200 years.

And Article 21 itself makes this clear, because what does it say can be tried by military commission?

It says anything that’s made a violation of statute or law of war.

John Paul Stevens:

But I don’t–

Paul D. Clement:

So–

John Paul Stevens:

–think, Mr. Clement, the 200 years have approved of his adding additional crimes under the law of war.

I mean, he has never… I don’t think we have ever held that the President can make something a crime which was not already a crime under the law of war.

Paul D. Clement:

–I think that may be true, Justice Stevens–

John Paul Stevens:

Yes.

Paul D. Clement:

–certainly as to the Article–

John Paul Stevens:

And one–

Paul D. Clement:

–21 point.

John Paul Stevens:

–of the issues is whether he’s done that here–

Paul D. Clement:

But–

John Paul Stevens:

–I think.

Paul D. Clement:

–But there’s no innovation in trying conspiracy as a violation of the law of war.

John Paul Stevens:

If you’re right on that, you’re right on the ultimate question, too.

Paul D. Clement:

Well, I hope so, because there’s really no question that conspiracy has been charged.

And, like you said, I would encourage you to look at footnote 5 on page 839 of the Winthrop Treatise; and this Quirin case had, also, that charge brought before it.

Colepaugh against Looney, which is a Tenth Circuit case from World War II, involved the charge of conspiracy.

Now, they’re going to come up here and tell you,

“Well, but that wasn’t… you know, in Colepaugh and Quirin, that wasn’t the one that the Court settled on. “

But that doesn’t dispute the fact that that is a crime that has traditionally been charged as a violation of the law of war.

Anthony M. Kennedy:

Your time is… why isn’t harm done on a uniquely vulnerable individual that… you used the phrase “uniquely vulnerable individuals” were involved in another case, but not here.

Why not here?

Paul D. Clement:

Well, he’s… I mean, I… I’m not saying that he isn’t somebody who is protected by the laws of war, the customary laws of war.

I think that he is protected by those.

I don’t think he’s protected by the Geneva Conventions, but that’s largely because he chose not to comply with the basic laws of war.

He’s obviously–

Antonin Scalia:

I thought… I thought… I thought you said all prisoners of war were uniquely vulnerable… I thought that was the point you were making–

Paul D. Clement:

–That is the point–

Antonin Scalia:

–and had… needed–

Paul D. Clement:

–that I’m making–

Antonin Scalia:

–needed protection of the… of the supervising powers, or whatever they’re called.

Paul D. Clement:

–Right, but not the domestic courts of the detaining power.

And if he’s any different than a usual prisoner of war, it’s because he’s disentitled himself to some protections by what has been determined by the ccert protections.

Let me just address, if I could, the idea that having provided him with ccert, we now have to provide him with an Article 5 hearing.

The ccert provisions provide all of the protections, and then some, that were normally provided in an Article 5 hearing.

They were focused on the question that is relevant in this dispute, which is whether or not somebody is an innocent civilian or an unlawful enemy combatant.

Nobody has a claim here that they were part of the uniformed al Qaeda division that complied with all of the laws of war, such that they are entitled to POW status.

The POW unlawful enemy combatant line is not one that really needs to be policed in this conflict.

The serious concern… and it was his claim when Petitioner walked into Federal Court in Washington… he said,

“I am not an enemy combatant. “

“I did not take up arms against the United States. “

That’s the claim that he brought to the ccert, the ccert rejected.

For these purposes, at this stage in the litigation, that ought to be enough to allow the proceeding to go forward in front of the military commission.

One of the defenses in the military commissions is lawful combatancy immunity.

He can make the argument that he wants to make in front of the commissions.

If the commission rejects the argument, then there will be review of that decision in the Court of Appeals on a concrete record.

This Court can then address that under 1254.

The use of military commissions to try enemy combatants has been part and parcel of the war power for 200 years.

Congress recognized it in 1916 in the Articles of War, then again, after World War II, in the UCMJ.

This Court recognized it in a host of cases, not just Quirin, but Yamashita, Eisentrager, and, most clearly, in Madsen.

Since that is such an important component of the law of war, something that has been part and parcel of that power from Major Andre’s capture to today, there is no reason for this Court to depart from that tradition.

Thank you.

John Paul Stevens:

Thank you, Mr. Clement.

Mr. Katyal.

Neal Kumar Katyal:

It is a foundational role of this Court, as Justice Kennedy says, to test the lawfulness of tribunals, particularly executive detention.

And in the pretrial area, that’s the historic role of this Court from Bereford to Quirin.

This claim is… Mr. Hamdan’s claim is primarily a jurisdictional one, as both courts below found when they recognized his ability to bring this pretrial challenge, because he is not an offender under the laws of war until he obtains his Article 5 hearing, because the charge doesn’t state a violation of the laws of war, which is, itself, jurisdictional, and because it doesn’t follow the procedures of the laws of war, which this Court, in Yamashita, in pages 5, and, in the dissent, at page 72, recognized as jurisdictional.

John Paul Stevens:

I don’t want to–

Neal Kumar Katyal:

Now, that was–

John Paul Stevens:

–I don’t want to take up from your time, but have you read the footnote that the… Mr. Clement relies on very heavily?

Neal Kumar Katyal:

–With respect to conspiracy?

Neal Kumar Katyal:

Yes, I have.

And I do believe the text says that they’re referring to domestic offenses.

It’s certainly the case that conspiracy has been tried as a violation of the laws of war at some point in the Civil War.

But that has been entirely eclipsed by the modern laws of war, which have rejected it everywhere.

And if you adopt the Government’s reading, Justice Stevens, that the laws of war are frozen into time in 1916, then I believe there goes the Government’s case entirely, because the thrust of the Government’s case is the laws of war have to adapt to this stateless, territoryless organization known as al Qaeda.

If we’re playing by 1916 rules, there is no way that this commission would have been accepted in 1916.

Now, all of those jurisdictional pretrial challenges were accepted by the courts below when the full panoply of DTA rights… when the full panoply of rights existed.

Now the DTA certainly circumscribes the scope.

We don’t know whether question 1 very clearly is able to be raised after the DTA’s enactment.

We certainly… question 2, as the Solicitor General has said, is not raisable.

We don’t know when it can be raised, because the President can block final review for all time under the DTA.

He has the keys to the Federal courthouse.

And if you defer to this system and give the President the ability to launch all of these tribunals for 75 individuals with these charges, with these procedures, you will be countenancing a huge expansion of military jurisdiction.

Conspiracy is one of the few offenses, Justices, that has now been rejected by the laws of war internationally in tribunal after tribunal.

It’s certainly never been approved by a Federal Court.

And, indeed, it has been rejected.

In Colepaugh, for example, no challenge to conspiracy was raised.

The Government’s argument, in the end, it seems to me, is one that this Court rejected in Levin, because it depends, as its predicate, on the idea that the President has ultimate flexibility with respect to these military commissions, except for the nine provisions in the UCMJ which govern translators and deposition testimony.

It is inconceivable that the UCMJ, when enacted, intended to regulate military commissions with only that bare bones to it.

Indeed, General Crowder said,

“Military commissions and courts martial follow the same procedures. “

Finally, Justices, we’d just point out that the predicate of abstention is not met here.

This is not a ordinary criminal trial applying lawful ordinary procedures.

This is an ad hoc trial in which the procedures are all defined with the President.

He says the laws of war do not apply when we’re talking about protecting this vulnerable individual at Guantanamo.

But then he says they do apply and permit him to charge Mr. Hamdan with the one offense which is rejected entirely at international law.

It was a great American patriot, Thomas Paine, who warned,

“He who… that would make his own liberty secure must guard even his enemy from oppression, for if he violates that duty, he establishes a precedent that will reach unto himself. “

That’s what we’re asking you to do here, just enforce the lawful uses of military commissions and the historic role of this Court.

Thank you.

John Paul Stevens:

Thank you, Counsel.

The case is submitted.