Kennedy's Turn Signals

Throughout yesterday’s argument in the Guantanamo detainee cases, all eyes were focused, of course, on Justice Kennedy. With the Court presumably divided 4-4 along ideological lines, Kennedy once again is at the wheel, deciding where he’s going to take the car.

He’s taken a left in the past, joining with liberals to rule against the Bush Administration in earlier legal challenges in the war on terror. And last spring, after the Court first decided it was premature to take up the detainees’ case, Kennedy later took the highly unusual step of switching his vote to jump into it (as did Stevens). So most people, including me, thought he was a sure bet to again abandon fellow conservatives in this highly significant case.

But after hearing yesterday’s arguments—and Kennedy’s questions--I’m much less confident of his leftward course. And when you factor in the emerging dynamics of the new Roberts Court, it seems even less certain.

First the argument. The few questions Kennedy asked seemed to suggest he was surprisingly sympathetic to the government. At a minimum, he appeared open to Solicitor General Paul Clement’s contention that Congress had created an adequate enough substitute for habeas review that the Court was best to stay out of it at this point.

At issue in this important case is whether the detainees can more fully challenge their detentions in federal courts or whether military tribunals, which now determine whether detainees can be held indefinitely and are subject to limited review by an appeals court, are adequate.

Those tribunals take place in Guantanamo, in a small hearing room before three military officers. The only lawyer in the room typically is on the panel—the detainee does not have legal counsel, but a “representative” provided by the government. The detainee doesn’t have access to all the evidence against him, and is limited in the evidence he can present to support his case for freedom.

Since the Bush Administration created the system in 2004, the government has held 573 Combatant Status Review Tribunals, or CSRTs, at GTMO, as the base is known by its military acronym. Military panels have determined that 38 of those detainees were not enemy combatants. Another 213 detainees originally classified as enemy combatants were approved for transfer or release, after a separate administrative review board determined they were not a threat to the United States.

We interviewed the military officials and lawyers who oversee the system last week when we were at Guantanamo. They say they’re proud of it--that it’s thorough and fair. And Brigadier Gen. Cameron Crawford, the deputy commander at Guantanamo, pointed out even under the current system, some 30 of the detainees they’ve released have rejoined the fight.

“The detainees that we continue to detain are being detained for a good reason,” said Capt. Ted Fessel, the officer in charge of the proceedings. “There is no appetite or desire on the part of the United States to keep the detainees here any longer than they have to be. So the ones that we continue to detain are here for a very good reason, based on the evidence, based on the documents, based on they information that we are afforded.”

But lawyers for the detainees argue that many who remain confined at GTMO are innocent, and they want to challenge their continued detention in federal courts—not in military tribunals or before review boards.

The detainees already have won some court review--a federal law, the Detainee Treatment Act, gives detainees the right to appeal the military’s decisions to the U.S. Court of Appeals for the D.C. Circuit. But lawyers for the detainees say that’s not good enough.

Seth Waxman, the former solicitor general in the Clinton Administration who argued on behalf of 37 detainees, said the system was “structurally flawed” and produced hearings that were “Kafkaesque.” Driving home his point, he said all six of his clients were innocent—yet there they sat, in Guantanamo, labeled “enemy combatants” who could be held indefinitely.

Waxman met with skepticism early on and struggled to get ground, but he redeemed himself with a bang-up anecdote in his rebuttal about a detainee who had been wrongly held and unable to prove it until a lawyer got a hold of his case. The story seemed tailor-made for Kennedy.

But that may not be enough to bring him all the way on board.

Of course, some of the justices yesterday were pretty predictable. Scalia was, well, Scaliaesque, filling the room with incredulousness that Waxman could argue the detainees have such rights in the first place. Breyer spun elaborate hypotheticals. Souter was visibly quaking in rage at the thought of the detainees being held nearly six years without court review.

But Kennedy was a surprise. He didn’t ask that many questions, and those he did pose to both sides indicated he was inclined to preserve the present system—and reluctant to have the Court intervene at this point to impose its own safeguards.

(Complicating things further in this complex case is that the D.C. Circuit has yet to decide how it would handle those appeals--which could put the Supreme Court in the awkward position of evaluating whether the process works, without first hearing from the appeals court.)

A few examples:

JUSTICE KENNEDY: I thought you were going to answer...that the Court of Appeals does have the right to determine whether to the extent the Constitution and the laws of the Untied States are applicable, whether such standards and procedures, such as CSRT, are—to make the determination—are consistent with the Constitution.



MR. WAXMAN: The petitioners have the right to adduce and present evidence (to counter the government’s case).

JUSTICE KENNEDY: Why can’t that take place in the CSRT review proceedings that are pending?

And another:

JUSTICE KENNEDY: Would the Court of Appeals in—under the MCA—have the authority to question the constitutionality of the definition of noncombatant, of unlawful combatant?

GENERAL CLEMENT: Absolutely, Justice Kennedy.Now these questions don’t sound necessarily like a justice who is going to embrace a decision that the detainees have no right to judicial review. But they suggest Kennedy is comfortable enough with the current process, with some type of review in the D.C. Circuit, that he may not seek to upset it.

And this is where the changing dynamics of the new Roberts Court might actually make a difference this term. Anthony Kennedy, the guy who’s never really had natural ally on the Court, may have one now.

First off, let’s not forget that Kennedy is a conservative. He's much more conservative than O’Connor was on a number of issues, such as abortion and race. He may not be Scalia or Thomas, but he sure isn’t Ginsburg or Souter, either. He typically leans Right.

But he's never really had a place to sit down and get comfortable. Scalia has always been too much for Kennedy and tended to start alienating him, oh, a minute or so into any oral argument. Thomas was too extreme and, to Kennedy’s mind, not as much of a scholar as he is. And Rehnquist didn’t try.

But now, there’s Sam Alito, the intellectual and experienced former federal appeals court judge who also has deep practical experience, having worked in the trenches as a federal prosecutor and U.S. attorney. It’s Alito (not Roberts) who will make the kind of arguments and pose the type of questions that are likely to appeal to Kennedy, the constitutional law scholar, and his sometimes pragmatic views on the law.

At his confirmation hearings, Alito was painted as more conservative than Roberts—-the justice who would “turn back the clock.” Remember when Bush nominated him on Halloween? A “scary choice,” the groups said.

But Alito isn't more conservative than Roberts—on some issues, he’s less so (and certainly less so than Scalia). And he has a knack for homing in on slightly different—and highly persuasive—points.

Look at Alito’s dissent last year in Hamdan, when the Court struck down President Bush’s system of military commissions. Had Stevens written a narrow, limited opinion saying the system was deficient, Alito perhaps could have been persuaded to join.

Instead, Stevens swung for the fences with a decision that even Kennedy refused to join completely. And Alito was in dissent with Scalia and Thomas, concluding the system was adequate.

But Alito joined Thomas’ dissent in Hamdan only in part. He wrote a separate dissent to explain that he thought the military commissions were lawful because they were “regularly constituted” courts, as required by the Geneva Convention.

It was an interesting point, and one Stevens could have better explored with Alito if he were seeking more consensus.

Of course, in response to Hamdan, Congress quickly passed the Military Commissions Act (MCA), which authorized the procedures and specifically stripped the courts of jurisdiction to hear habeas claims brought by detainees at Guantanamo. So now, Congress and the President are standing together.

Based on the past cases, it’s clear the court’s four solid judicial conservatives will side with Congress and the Administration. But will Kennedy stay with the liberals, now that Congress has clearly spoken to the issue—now that there’s no “conflict” between the President and the Congress (which troubled Kennedy in Hamdan)?

That’s where Alito's take could be pivotal. At argument, he focused on potential problems with expansive habeas review--problems that also would trouble Anthony Kennedy. He quietly posed questions that showed how difficult a ruling which gave detainees expanded habeas review would be. His questions were among the most interesting of the argument.

JUSTICE ALITO: If the Court holds that the DTA (Detainee Treatment Act) is not an adequate substitute for habeas, what will happen? Will these Petitioners then have access to all of the procedures that normally apply in a habeas proceeding….the same right to discovery, subpoena witnesses, access to classified information, presence in court?

GENERAL CLEMENT: The government will certainly take the position that they are not entitled to those things. Presumably, the Petitioners will be arguing they are entitled to those things. The answers to those questions will be unclear because the review provided by the DTA and the habeas statute, if it is applied in this context, either way, whatever the vehicle for that judicial review, it will be unprecedented. And there will be difficult questions that will need to be worked out.

And here is Alito earlier in the argument, again posing practical problems that suggest a more limited role for the Court.

JUSTICE ALITO: So the answer to Justice Ginsburg's question, it wouldn't matter where these detainees were held so long as they are under U.S. control. If they were held on a U.S. military base pursuant to a standard treaty with another country, if they were in Afghanistan or in Iraq, the result would be the same?

MR. WAXMAN: No, I think, Justice Alito, I want to be as clear about this as I can be. This is a particularly easy straightforward case, but in another place, jurisdiction would depend on the facts and circumstances, including the nature of an agreement with the resident sovereign over who exercises control.

Alito continued:

JUSTICE ALITO: What if, in a future war, many of the soldiers and the opposing Army don't wear uniforms? What if it's a war like Vietnam and thousands of prisoners are taken into custody and they are brought to prisoner-of-war camps in the United States as occurred during World War II? Every one of them under your theory could file a habeas petition. Is that right?

MR. WAXMAN: Well, if they were in the United States, I think it's clear that they could file a habeas petition. And, you know, the question about how Guantanamo relates to that is for this Court.

Scalia later took strong issue with that—noting that the 400,000 German soldiers here during World War II never filed any habeas petitions.

And after a few moments, Roberts jumped in, going back to Alito’s questions about when courts would have jurisdiction to hear habeas claims of prisoners captured during wartime. Waxman earlier had argued that courts had jurisdiction over the detainees, because they were held on a military base at Guantanamo, which is under US Control.

CHIEF JUSTICE ROBERTS: So to determine whether there's jurisdiction, in every case we have to go through a multi- factor analysis to determine if the United States exercises not sovereignty, which you've rejected as the touchstone, but sufficient control over a particular military base? Over the Philippines during World War II, in Vietnam, and it is going to decide in some cases whether the control is sufficient and others whether it isn't?

MR. WAXMAN: Well, I don't --

CHIEF JUSTICE ROBERTS: And that is a judgment we the Court would make, not the political branches who have to deal with the competing sovereignties in those situations?

Now Kennedy, as we all know, is pretty comfortable having the Court exercise its authority. But this is a case where Congress and the Executive have spoken—and the appeals court hasn’t yet ruled on the adequacy of the system the political branches have already set up just to manage these vexing cases.

And, as Alito indicated, the practical problems and difficult questions a broad ruling for the detainees would raise are so enormous that Kennedy may--just may--decide this is a case where judicial power is left unexercised. Or at least delayed.

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