Through the nearly hour-and-a-half-long arguments, Solicitor General Paul Clement found himself on the defensive with the government's position denying that detainees have a constitutional right to habeas corpus--the basic way for prisoners to challenge any wrongful imprisonment.
"I thought this was decided in Rasul," said Justice Ruth Bader Ginsburg, referring to the court's 2004 ruling that held that constitutional protections did extend to Guantanamo prisoners. "Which is why I'm so puzzled by the government's position."
Even if the justices agreed that the detainees had such a right, Clement argued that detainees still had substantial access to the federal courts through a process created by 2005 legislation, which allows detainees to ask the U.S. Court of Appeals for the D.C. Circuit for a review if the government's reason for holding them is that they are "enemy combatants."
"This is a remarkable liberalization of the writ" of habeas, he said.
But Justice Stephen Breyer was unconvinced. What would happen, Breyer suggested, if a detainee wanted to challenge the constitutionality and the veracity of the process itself during the appellate court review? "Where can you make that argument?" he asked.
"I'm not sure he can make that argument," Clement replied.
"Exactly," Breyer responded, adding that this showed there was no meaningful review in the federal court review.
That is precisely what the detainees' lawyer, Clinton-era Solicitor General Seth Waxman, repeated again and again, namely, that the appellate court review "cannot provide any reliable examination" of the detainees' detention.
Waxman faced persistent questioning too, particularly from Justice Antonin Scalia.
"Do you have a single case in the 220 years of the court, or for that matter, in the five centuries of English common law, in which habeas was granted to an alien in a territory not under sovereign control of the United States?" Scalia asked.
Waxman rattled off a list of cases, but Scalia was unmoved.
"Let me take a shot at convincing you," Waxman offered. The question courts had looked at before, Waxman continued, was not whether these individuals were citizens of other countries but whether the country holding them had complete control over those individuals. And Guantanamo--controlled and run entirely by the U.S. military--undoubtedly filled the bill, Waxman said. Cuba's laws did not apply, even if its own citizens were on the base, he said.
Waxman conceded that it was legally possible for the military to create a judicial system where there could be a fair review without the federal courts. But he said that was not the sort of system that had been set up at Guantanamo. And after six years of detention, "if the writ [of habeas corpus] means anything, then the time for experimentation is over," Waxman said.
By Emma Schwartz