What appeared to trouble Justice Souter most was Mr. Clement's discussion with Justice Stevens about whether Congress's removal of the federal courts' jurisdiction to hear habeas corpus petitions from detainees at the naval base at Guantánamo Bay, Cuba, amounted to "suspending" the writ of habeas corpus.
Suspending habeas corpus is an action, limited by the Constitution to "cases of rebellion or invasion," that Congress has taken only four times in the country's history. Habeas corpus is the means by which prisoners can go to court to challenge the lawfulness of their confinement, and its suspension is historically regarded as a serious, if not drastic, step.
Mr. Clement's position was that Congress had not in fact suspended habeas corpus, but that it might constitutionally have done so given "the exigencies of 9/11." Addressing Justice Stevens, the solicitor general said, "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."
Justice Souter interrupted. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"
When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"
The solicitor general replied, "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States —— "
"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. 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."
The Solicitor General's position captures the essence of the way the Bush Administration has operated. It doesn't matter what the law actually says. If the law is explicit then Bush can use a signing statement to ignore it if he doesn't like it. And if the law is vague it is possible to read into it whatever they want. Congress did not suspend the writ of habeus corpus in the aftermath of 9/11, but they might have, probably intended to, just forgot to do it. So we will.
1 comment:
Welcome to the world of appellate legal practice, Solicitor General Clement! You don't just go in there without great answers ready for both the obvious--as this one seemed to me--and the tougher questions of law!
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