JIM LEHRER: Now, the Guantanamo detainees’ day in the U.S. Supreme Court. Ray Suarez begins our coverage.
RAY SUAREZ: Today marked the fourth time in three years the justices have looked at a case related to enemy combatants, suspected members of al-Qaida and the Taliban, captured and detained at Guantanamo Bay, Cuba.
What the detainees want is the chance to challenge their detentions in U.S. federal courts. NewsHour regular Marcia Coyle of the National Law Journal was at the court for today’s argument, and she joins us now.
And, Marcia, the court having heard so many preceding cases on the rights of the federal government and the rights of detainees, what was at issue today that was different?
MARCIA COYLE, National Law Journal: This case asks whether the detainees in Guantanamo Bay have a constitutional right to petition for habeas corpus in the federal courts. It involves one of our most fundamental constitutional guarantees: the great writ of habeas corpus, an ancient right that gives prisoners access to the courts or to some tribunal to challenge their detention.
RAY SUAREZ: So Seth Waxman represented the six Algerian nationals detained in Guantanamo. What was the crux of his argument?
MARCIA COYLE: Mr. Waxman, if you recall, Ray, was solicitor general of the United States during the Clinton administration. His clients are the Algerians, but he today before the court was representing 37 detainees who claim that they are innocent and who have been held at Guantanamo Bay without charge for nearly six years.
He’s arguing that the history of the great writ and its application shows that it does extend to these detainees in Guantanamo Bay and that Congress violated the suspension clause in the Constitution, which protects the application of the great writ by enacting the Military Commission Act and the Detainee Treatment Act, which also stripped the federal courts of jurisdiction over petitions by detainees in Guantanamo Bay and anywhere else.
RAY SUAREZ: Well, lately, when there are big cases, the Supreme Court has started to make audio more readily available. What are we going to hear in this next excerpt?
MARCIA COYLE: By arguing that the history of the great writ in 1789, and even earlier, shows or proves or demonstrates that these detainees have a constitutional right to habeas corpus, it drew Mr. Waxman and the justices into cases that applied the great writ in 1789 and sometimes as early as the 1600s in British law, because the writ has its roots in British common law.
And we’re going to hear how Justice Scalia was very skeptical of the historical argument that Mr. Waxman was making.
RAY SUAREZ: Let’s take a listen.
JUSTICE ANTHONY SCALIA, U.S. Supreme Court: Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?
SETH WAXMAN, Attorney: The answer to that is a resounding yes.
JUSTICE ANTHONY SCALIA: What is…
SETH WAXMAN: They are the cases that were discussed and cited by the majority opinion in Rasul. And we have added other ones to them.
JUSTICE ANTHONY SCALIA: In 220 years of our history or five centuries of the British, do you have a single case in which it was not a citizen of England or a citizen of the United States in which a common law writ of habeas corpus issued to a piece of land that was not within the sovereign jurisdiction?
You are appealing to a common law right that somehow found its way into our Constitution without, as far as I can discern, a single case in which the writ ever issued to a non-citizen.
RAY SUAREZ: So we hear Justice Scalia really asking two things. Does this law apply to foreigners? And does it apply on foreign soil? So I guess that brings into question what Guantanamo Bay is.
MARCIA COYLE: Exactly. And the reference to Rasul was a decision in 2004 by the Supreme Court which looked at whether the detainees in Guantanamo Bay had a right to file habeas petitions in federal court under a statute.
The court left open the question of whether there’s a constitutional right. The court said there was a statutory right to federal habeas, because Guantanamo Bay, for all practical purposes, is under the exclusive jurisdiction of the United States, according to the terms of a lease that the United States has with Cuba.
And Mr. Waxman, time and again, would press the argument that Guantanamo Bay is under the control of the United States, and so the constitutional right of habeas corpus applies to these detainees.
RAY SUAREZ: Arguing for the United States was Solicitor General Paul Clement. How did he respond?
MARCIA COYLE: Mr. Clement argues that the constitutional right of habeas corpus does not apply to detainees in Guantanamo Bay. He spent most of his argument, however, dealing with questions that related to the second issue in the case.
I mentioned that the suspension clause protects the application of the writ of habeas corpus. It says that that writ shall not be suspended, except in cases of invasion or rebellion when the public safety requires it. Those circumstances aren’t present here.
The court has said over the years, however, that habeas corpus doesn’t have to be available in a formal sense always if there is an adequate alternative to it.
Mr. Clement spent most of his argument saying that the procedures set up under the MCA and the DTA, by which detainees have their status determined by a combatant status review tribunal, a CSRT, and they’re tried by a military commission, if charged, that is an adequate alternative to habeas corpus. It provides these aliens with more rights than prisoners of war or other aliens have ever been given in our history.
RAY SUAREZ: Let’s listen to this exchange between Associate Justice Stephen Breyer and Solicitor General Paul Clement.
PAUL CLEMENT, U.S. Solicitor General: Let me say about the DTA and MCA, it really does represent the best efforts of the political branches, both political branches, to try to balance the interest in providing the detainees in this admittedly unique situation additional process with the imperative to successfully prosecute the global war on terror.
JUSTICE STEPHEN BREYER, U.S. Supreme Court: They get additional process. The question I guess is whether it’s an adequate substitute for having withdrawn the writ of habeas corpus.
On that question, suppose that you are from Bosnia, and you are held for six years in Guantanamo. And the charge is that you helped al-Qaida. And you’ve had your hearing before the CSRT.
And now you go to the D.C. Circuit and here’s what you say: The CSRT is all wrong. Their procedures are terrible. But, Judge, for purposes of argument, I concede their procedures are wonderful, and I also conclude it reached a perfectly good result. OK? So you concede it, for argument’s sake.
But what you want to say is, Judge, I don’t care how good those procedures are. I’m from Bosnia. I’ve been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me, in the absence of some special procedure in Congress for preventive detention.
That’s the argument I want to make. I don’t see anything in this CSRT provision that permits me to make that argument. So I’m asking you, where can you make that argument?
PAUL CLEMENT: I’m not sure that he can make that argument, Justice Breyer.
JUSTICE STEPHEN BREYER: Exactly. If you cannot make that argue, how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people would like to make?
PAUL CLEMENT: Well, Justice Breyer, let me take it this way, which is, of course, you’re getting to the gravamen of their claim, which is that the DTA and the review provided in the D.C. Circuit is not an adequate substitute for habeas review.
RAY SUAREZ: So, Marcia, is the detainee’s lawyer, Mr. Waxman, asking for immediate relief? Is his petition one to, you know, not wait until the end of the term, but make this decision right away?
MARCIA COYLE: Well, he certainly wants a decision as quickly as possible, but I think what he’s ultimately asking the court to do is to, one, find that the great writ of habeas corpus applies here and that the remedy is released.
RAY SUAREZ: So, very quickly, if that argument prevails before these justices, does that mean that far more than the 37 people involved in today’s case may be able to seek relief in the federal courts for their detention in Cuba?
MARCIA COYLE: Yes, if the argument prevails. And I would say that there are many issues now in the lower courts related to the detainees in Guantanamo Bay and the conduct, the legal issues surrounding the conduct of the war on terror.
Regardless of what the Supreme Court does here — and this is a very important case — there’s going to continue to be litigation in the lower courts that ultimately will again get to the Supreme Court.
RAY SUAREZ: Marcia Coyle, thanks for joining us.
MARCIA COYLE: My pleasure, Ray.
The Constitution and Guantanamo
JIM LEHRER: And Judy Woodruff takes it from there.
JUDY WOODRUFF: And for a look at what's at stake in today's case for both the Bush administration and the Guantanamo detainees, we get two views. Lee Casey, he is a former Justice Department lawyer during the Reagan and first Bush administrations, he is now in private practice here in Washington.
And Neal Katyal, a professor at Georgetown University Law School, he successfully argued the 2006 Supreme Court case Hamdan v. Rumsfeld, which struck down the Bush administration's military tribunals system.
Gentlemen, thank you both. This is a tough one to talk about with the DTAs and the CSRTs and the MCA. So let's try to keep it as simple as possible, for my sake.
Lee Casey, is there at least agreement on what it is that we believe the court is going to rule on, that what they are going -- that the question they're going to settle, will they settle once and for all whether these detainees have this constitutional right of habeas corpus?
LEE CASEY, Former U.S. Staff Attorney: Well, I think that we can expect that they will indeed say either "yes" or "no." There's a couple of possibilities.
The court could say that, "Well, we really need to see what the D.C. Circuit is going to say. And, therefore, we will not rule until some of these cases that have been making their way towards judicial review, pursuant to the system that Congress set up, get up to court and we get a decision."
Now, if that's what they were going to do, they probably wouldn't have taken the case for argument this term. I mean, we're speculating a little bit. But my guess is that they will ultimately say that either, yes or no, habeas applies to Guantanamo.
JUDY WOODRUFF: Neal Katyal, are we in agreement here that that's what we're going to see?
NEAL KATYAL, Professor, Georgetown University: Yes, I think that the Supreme Court took this case to answer the big meta-question, which is, does the Constitution give any rights to the people at Guantanamo Bay?
The Bush administration for years has said no. That's, after all, why they put them there. They put them there because they thought that Guantanamo was a Constitution-free zone.
The Supreme Court has been pushing back at that incrementally for years, but I think today's hearing, despite all the arcane, technical acronyms and so on, is about that basic, fundamental question: Can the government do whatever its wants to these 300 or so detainees at Guantanamo Bay, or does the Constitution protect them?
Alternative tribunal system
JUDY WOODRUFF: And so what did you hear, Lee Casey, in what the justices questioned? We've heard Justice Scalia. We heard principally from him and from Justice Breyer. But most of the justices participated in the questioning. What did you hear today in these arguments that further helps you understand which way this court may go?
LEE CASEY: Well, it is always difficult to predict what the courts are going to do based on oral argument. People ask questions about things that they are concerned about, but it doesn't necessarily mean they're going to rule any particular way.
That said, I think it is interesting, for example, that Justice Kennedy seemed very, very interested in what the D.C. Circuit can do under the law Congress set up, the MCA and the DTA, or the Detainee Treatment Act of 2005 and the Military Commissions Act.
JUDY WOODRUFF: This is this alternative system that Congress set up?
LEE CASEY: This is this alternative system, very interested, which actually gets you ultimately to the Supreme Court. It first gives you the administrative hearing among by the military on the combatant status review tribunal, then a hearing in the D.C. Circuit to review the procedures, and whether the standard of evidence was met, and then onto the Supreme Court.
JUDY WOODRUFF: But throwing it back to the lower court, Neal Katyal, that would suggest the court might not be deciding that meta-question?
NEAL KATYAL: No, I think that the Supreme Court -- and what I heard today might have been slightly different than Lee. And, of course, he's right, it's hard to predict.
But what I understood the Supreme Court to basically be saying today through their questioning was that there are five justices who believe that big question -- "Does the Constitution apply to detainees at Guantanamo Bay, at least its fundamental guarantees?" -- the answer to that is yes.
And then the question becomes, what should the court do then? Should they then settle some of the detainees' claims themselves, or should they send it back to the lower court for further proceedings?
But my sense is that's really where the debate is going to lie and not where the Bush administration would like it to be, which is to say Guantanamo is a Constitution-free zone.
JUDY WOODRUFF: So is this argument hinging then on whether this alternative arrangement is a satisfactory arrangement? Is that what we're talking about?
NEAL KATYAL: That's the second question in the case. And what I'm saying is that there is, I think, disagreement between Lee and I, and certainly among the parties before the Supreme Court, as to the answer to that. But I think there's quite a bit less disagreement about the big meta-question, does the Constitution apply?
JUDY WOODRUFF: Cover at Guantanamo Bay.
NEAL KATYAL: Exactly.
Looking at precedent
JUDY WOODRUFF: And why does that matter? I mean, Mr. Waxman, former solicitor general, the attorney for the detainees, argued -- and we just heard that exchange with Justice Scalia -- that there's no question that there's a precedent that they would be covered.
LEE CASEY: Well, I think he spent some time on that, because that is, in fact, the weak point in his case, in the detainees' case. For the Supreme Court to say that the Constitution applies to Guantanamo Bay would be a very big deal.
It is settled law that the Constitution does not apply to aliens held overseas. The court settled that in 1950. It would have to overrule that precedent in a case called Johnson v. Eisentrager, dealing with the occupation of Germany, in order to rule that.
In addition, there is a side issue here that's actually very important, which is, if the court were to say that, "Yes, Guantanamo Bay is sovereign U.S. territory," it would, in fact, put us in violation of our treaty with Cuba, which makes clear that Cuba retains sovereignty of that territory.
And, of course, while there is very little chance there's going to be any renegotiation right now, Guantanamo Bay is actually a relic of the age of colonialism. And I think there is an expectation that, when there's a democratic government in Cuba, it will be renegotiated.
JUDY WOODRUFF: So just how essential to all this is deciding whether Guantanamo Bay is under U.S. jurisdiction?
NEAL KATYAL: Yes, I disagree with almost everything there entirely. So I think the Supreme Court in 2004 said that Guantanamo, for all practical purposes, is United States territory where the fundamental rights of habeas corpus apply.
So I don't think that they're going to have to change course in any way or overrule any cases to continue with that line of thinking. And you asked why this is important. Well, here's a good example.
Today, there's a trial for Mr. Salim Hamdan, the man I represented last year in the Supreme Court, at Guantanamo, in which the most awesome powers of government are at stake, life imprisonment and the death penalty. And the entire reason for this trial taking place at Guantanamo is the Bush administration's argument the Constitution doesn't apply at all at Guantanamo.
This trial could not exist otherwise. So we're talking about literally life-and-death decisions that are on the line in today's proceedings.
Examining possible outcomes
JUDY WOODRUFF: So, finally, what's at stake here? If this court rules, Lee Casey, in favor of these detainees, what's at stake?
LEE CASEY: Well, I think it will mark the first time that the Supreme Court has involved itself in fundamental issues of how wars are fought, not in the United States, not surveillance, but overseas. What happens on the battlefield overseas? How are prisoners kept? And that is a very big deal.
NEAL KATYAL: And it's just absolutely wrong to think that Guantanamo is a battlefield. It is a place that is under the absolute control of the United States and looks nothing like a battlefield. That's where I think the Supreme Court is likely to go.
JUDY WOODRUFF: And if the court were, though, to rule in favor of the Bush administration, what would that mean?
LEE CASEY: Well, the administrative proceedings would continue. The detainees have had their hearings. They will get their appeals to the D.C. Circuit, the Federal Court of Appeals here in Washington, D.C., and then onto the Supreme Court.
JUDY WOODRUFF: Their cases would still be heard, is what you're saying?
LEE CASEY: Their cases would still be heard. They would still have an opportunity to contest their classification as enemy combatants.
NEAL KATYAL: And that is not worth very much. In a Constitution-free zone, I don't think trials where life imprisonment or the death penalty are at stake are something that the nation could be proud of.
JUDY WOODRUFF: And you're saying that's what would happen if the court ruled the other way?
NEAL KATYAL: That's what would happen if the administration wins, yes.
JUDY WOODRUFF: All right. Neal Katyal, Lee Casey, gentlemen, we thank you both.
NEAL KATYAL: Thank you.
LEE CASEY: Thank you.