"The writ is the writ."--Justice David Souter

[This is going to get stale if I don't go ahead and post it.]

"Jurisdiction over habeas corpus is jurisdiction over habeas corpus."--Justice David Souter in oral arguments in Hamdan v. Rumsfeld. The statement came in this exchange with the Solicitor General (courtesy of the NYT article). Habeas corpus can be suspended, per the Constitution, but only by Congress (an important distinction for this Administration) and only in "cases of rebellion or invasion." Follow the bouncing ball of the Government's argument:

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 is trying to bootstrap his argument on Scalia's dissent in Hamdi, always a dicey argument and doubly so considering that opinion is not exactly cold in its judicial grave. Still, as Souter points out, even that desperate attempt isn't enough to save him. I think Souter has done much more in that exchange than express his position on the jurisdictional issue raised by the Detainee Treatment Act. It's really worth listening to the NPR report to hear the exasperation in Justice Souter's voice, and the weak attempt by Justice Scalia to give the solicitor general some grounds for argument. Scalia may believe what he says, but his tone betrays his confidence in his position.

This case is absolutely historic, and it will not be resolved on a question of lack of jurisdiction, although jurisdiction is what this case is all about. The question before the Court is: who gets to establish courts and the rules under which they operate? That power has traditionally been split, by Constitution and by statute, between the legislature (laws) and the Courts (rules, which the Supreme Court establishes under a Congressional grant of authority to do so). The Court recognizes this threat, and doesn't seem to have been too impressed with the Government's arguments:

Mr. Clement argued that the detainee law would allow a detainee to argue in federal court, after a conviction by a military commission, that the commission's procedures were illegal or unconstitutional.

Justice Ginsburg then asked him to "straighten me out." She said, "I thought it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States."

"That is true, Justice Ginsburg," the solicitor general answered.

So up is down, and black is white, except when it suits us to reverse that. And when we do, it's up to us (the Administration) to decide, and we don't have to tell anybody when, or why. Nor was there any apparent support for the government's argument that the President needed this power due to an "emergency":

Justice Stephen Breyer said that lawyers for Hamdan, who faces a single conspiracy count, argue there is no emergency to justify the special trial.

"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," Breyer said.

As Justice Souter said: the writ is the writ, and (in a clear slap at Scalia) there isn't one for citizens, and one for non-citizens.

And while that business of the "colloquy" inserted into the Congressional record did not affect oral arguments, it was clearly an embarassment to the two Senators.

Justice Souter eviscerated the government's argument that Congress had removed jurisdiction over this case, by noting that the government's argument rested on inadvertence, i.e., Congress, without meaning to, had removed jurisdiction from the Court for all cases coming from Gitmo. A majority of the Justices didn't seem too impressed with it:

Justice David H. Souter said it would be "stupendously significant" for Congress to retroactively close courts to constitutional challenges.

Justice Ruth Bader Ginsburg said "it's an extraordinary act, I think, to withdraw jurisdiction from this court in a pending case."

The NPR report provides an excellent summary of the arguments with the original recordings. Even if they are a bit bewildering to you (I haven't practiced law in years, nor studied the finer points of habeas law since law school, but I found it fascinating, as well as heartening to hear the Court understand the basic issues as I do), the opportunity to listen to the recording of the actual oral argument is worth your time. Only excerpts, of course, but there is a link to the full argument, if you are so inclined.

Always a dangerous thing to speculate on how the case will go based on oral arguments, but as Ms. Totenberg notes, the Government got a chillier reception than was expected. Even Scalia's interjections sound half-hearted, as if merely for the sake of stubbornness he wants to insist on a "purer" position that has no relevance in the real world. In the context of remarks by Justices Ginsburg and O'Connor recently (which comments Tom DeLay managed to make even more disturbing, and I didn't think that was possible) , of the Hamdi case, and the tenor of the questioning yesterday, I don't think the Court is inclined to give President Bush the powers he claims to have.

It's a cinch the Congress won't stop him; but there is hope the Court will. Now if we can just get to the issue of "signing statements."