Detainee Law Is Under Supreme Court Microscope

The Supreme Court is taking up a case that could have far reaching consequences — no matter how it rules — on prisoners who are military detaines.

And it’s a case in which the government, in effect, is arguing that the court doesn’t have any right to really take up the case:

As the justices of the Supreme Court took their seats Tuesday morning to hear Osama bin Laden’s former driver challenge the Bush administration’s plan to try him before a military commission, one question — perhaps the most important one — was how protective the justices would be of their jurisdiction to decide the case.

The answer emerged gradually, but by the end of the tightly packed 90-minute argument, it was fairly clear: highly protective.

At least five justices — Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and John Paul Stevens — appeared ready to reject the administration’s argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction.

Note here Robert’s role. Is he proving to be more an unreliable vote for the goverment? MORE:

It was less certain by the end of the argument how the court would then go on to resolve the merits of the case, a multipronged attack on the validity of the military commissions themselves and on their procedures. Lawyers for the former driver, a Yemeni named Salim Ahmed Hamdan who is charged with conspiracy, also argue that he cannot properly be tried before any military commission for that crime because conspiracy is not recognized as a war crime.

Solicitor General Paul D. Clement was on the defensive throughout his argument. His stolid refusal to concede that any of the government’s positions, on the jurisdictional as well as ultimate questions of the case, might present even theoretical problems provoked the normally soft-spoken Justice Souter into an outburst of anger.

Not a good sign for the government. This mean more “hubris” for the administration: it could, conceivably, win on this case but irk some justices who might be less inclined to vote its way on other cases. MORE:

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.”

No matter how this case goes one thing is clear: George Bush has three more years left on his term. If Roberts on various cases is going to prove more a swing vote than many of his critics predicted, then the battle royal for the administration will be to get someone in place with the next Supreme Court opening who will be a far more “safe” vote on the prickly issues surrounding post-911 laws and matters involving executive power. In other words: watch this case…but also watch the court openings close over the next three years.