Re: Rasul v. Bush & Al Odah v. U.S

Hah, I was cracked out on the couch watching this very thing last night,
defying "smash your television week".

The line of argument and questioning included:

- Are we at war?
- What are a noncitizen's rights /if/ we're at war?
- What are a noncitizen's rights if we're /not/ at war?
(The concern on whether Congress had actually declared war seemed a
non-issue)
- What are the rights of aliens?
- What are the rights of citizens?
- Is there jurisdiction in Guantanamo Bay?
- What does the U.S. lease with Cuba actually say?
- Does a federal court have jurisdiction over a piece of land with an 1897
  perpetual (read colonial) lease that gives the U.S. "complete
  jurisdiction and control" of Gitmo while preserving Cuba's "ultimate
  sovereignty."?
- What does "jurisdiction" really mean though?
- What is "sovereignty"?
- Is Gitmo part of the United States?
- How could citizens at Gitmo have full constitutional rights but aliens
  be denied just because their not on U.S. soil (an argument made by the
  Bush side)?
(That Cuba denounces the base, believes the lease is garbage, and has
refused to cash-in the U.S. Navy's checks for lease payment since the
revolution was never brought up, yesterday)
- What does /habeas corpus/ mean?
- Do we go by what the habeas corpus *statute* or the *consitution*?
- Is a previous and related Supreme Court case (Johnson v. Eisentrager)
  from the Cold War (1950) that denies habeas corpus to enemy combatants
  bogus (their word is "ambiguous")?
- The prior case above involves tried and convicted German spies which
  contrasts with Gitmo detainees who haven't been tried and claim
  innocence.
- Could the Supreme Court create a "reticulated system" for preventing the
  courts from intervening in military matters?
- Are Supreme Court justices aware that they're supposed to, at the
  minimum, act as if the constiutional separation of powers does exist as
  we were all taught in grade school and actually "check" the executive
  branch?
- Wouldn't it be great if the supreme court finally washed its hands of
  any and all responsibilities for the military?
  (We've got an /appointed/ executive government, might as well bless the
  dictatorship by unleasing the military.)
- Is Scalia a slut?

I couldn't find a transcript.  I'm sure a U.S. Marshall had it destroyed.
Here's today's NY Times story:

April 21, 2004
Supreme Court Hears the Case of Guanta'namo
By LINDA GREENHOUSE

WASHINGTON, April 20 -- The Supreme Court appeared distinctly unreceptive
Tuesday to the Bush administration's argument that the federal courthouse
doors must remain closed to the foreign detainees at the Guanta'namo Bay
naval base in Cuba.

In the first of three cases this month on the right to judicial review of
those deemed enemy combatants, most justices seemed to regard the World
War II-era precedent that is the cornerstone of the administration's
strategy as ambiguous, irrelevant or even counter to the administration's
position.

Even Solicitor General Theodore B. Olson's opening declaration, "The
United States is at war," appeared to rankle rather than persuade the
skeptical justices.

"Supposing the war had ended," Justice John Paul Stevens asked Mr. Olson.
"Could you continue to detain these people in Guanta'namo, and would there
then be jurisdiction?"

Mr. Olson replied, "We believe that there would not be jurisdiction."

Justice Stevens then asked, "So the existence of the war is really
irrelevant to the legal issue, is it not?"

True, Mr. Olson acknowledged, the government's position did not depend on
the continued military conflict in Afghanistan. "But it's even more
forceful and compelling" in that context, he said.

In addition to Justice Stevens, Justices Ruth Bader Ginsburg, David H.
Souter, Stephen G. Breyer and Sandra Day O'Connor also appeared
unpersuaded by the administration's arguments.

At issue was whether the Guanta'namo detainees, some 600 men of varying
nationalities seized in Afghanistan and Pakistan during operations against
the Taliban, can have access to federal court to contest their detention
through petitions for habeas corpus, the ancient writ by which prisoners
in the English-speaking world have for centuries been able to challenge
the legality of their confinement.

The federal appeals court here ruled last year that the federal courts
lack jurisdiction to consider habeas corpus petitions from the detainees
at Guanta'namo. The two cases the Supreme Court combined for the argument
on Tuesday were brought on behalf of 16 detainees, who all maintain that
they were innocent noncombatants, some mistakenly picked up by bounty
hunters, when they were seized.

While hearing the case on behalf of noncitizens, the justices and most
others in the crowded courtroom -- some of whom had waited in line since
11 p.m. Monday -- also no doubt had in mind the next round in the court's
review of the administration's pursuit of its war on terrorism.

Two cases to be argued next Wednesday test the rights of United States
citizens, Yaser Esam Hamdi and Jose Padilla, held for two years in
military custody on suspicion of collaborating with Al Qaeda but never
officially charged or given the opportunity to contest the basis for being
designated enemy combatants.

Arriving at the court two and a half years after the Sept. 11 attacks, the
three cases present the Supreme Court with a long-anticipated opportunity
to examine not only the balance between civil liberties and national
security, but between the executive branch and the judiciary as well.
Framed as questions of federal court jurisdiction, the cases bring central
questions of judicial authority to a court that has been notably jealous
of its own prerogatives.

John J. Gibbons, a retired federal judge who argued on behalf of the
detainees, emphasized that strand of his argument in his opening words.
"What's at stake in this case is the authority of the federal courts to
uphold the rule of law," he said.

His argument was not particularly eloquent, but the fact that he was
making it lent an air of authority to the detainees' cause. Mr. Gibbons,
79, was named to the federal appeals court in Philadelphia by President
Richard M. Nixon. He served as chief judge before retiring in 1990 to join
a major law firm in Newark.

As a young Navy officer, Mr. Gibbons spent a year at Guanta'namo Bay. One
major issue in the case, Rasul v. Bush, No. 03-334, is how to characterize
the United States role in that Cuban outpost, which it has occupied since
1903 under a perpetual lease that gives it "complete jurisdiction and
control" while preserving Cuba's "ultimate sovereignty."

While the correct interpretation was the subject of vigorous debate on
Tuesday, the Supreme Court precedent at the core of the legal argument, a
decision from 1950 called Johnson v. Eisentrager, indicated that
noncitizen enemy combatants held outside the United States have no right
to habeas corpus. So it was important for the detainees to try to show
that Guanta'namo Bay should be considered functionally, if not formally,
part of the United States.

"Guanta'namo Navy Base, as I can attest from a year of personal
experience, is under complete United States control and has been for a
century," Mr. Gibbons said.

Justice Ginsburg said with a smile: "We don't need your personal
experience. That's what it says in the treaty. It says `complete
jurisdiction, complete jurisdiction and control.' "

Chief Justice William H. Rehnquist objected: "It also says Cuba retains
sovereignty."

Mr. Gibbons replied: "Cuban law has never had any application inside that
base. A stamp with Fidel Castro's picture on it wouldn't get a letter off
the base."

He added: "It's so totally artificial to say that because of this
provision in the lease, the executive branch can create a `no law' zone
where it is not accountable to any judiciary anywhere."

The Johnson v. Eisentrager precedent also figured heavily in the argument
made by Mr. Olson, whose wife, Barbara, died in the Sept. 11 attacks. He
contended that the case, which rejected habeas corpus petitions from 21
German civilians who had been caught spying for Japan in wartime China,
established a rule barring the federal courts from even considering
petitions from enemy aliens being held overseas.

The Guanta'namo detainees' lawyers, however, argue that the decision
indicates the court did exercise jurisdiction and then rejected the
petitions on their merits, at least in part because the Germans had
already been tried and found guilty by a military commission. If that
interpretation is accepted, then there is no binding Supreme Court
precedent that bars jurisdiction in the Guanta'namo case for petitioners
who have been neither charged nor tried.

Justice O'Connor, whose vote is likely to be crucial, appeared to accept
that view. "What it seemed to do was to reach the merits and say at the
end of the day, these people have no rights," Justice O'Connor said of the
Eisentrager ruling. "They've had a trial under the military tribunal and
they have no rights that could be granted," she added.

A Supreme Court decision finding jurisdiction to hear the Guanta'namo
detainees' habeas corpus petitions would raise -- but almost certainly
leave to the lower courts to answer -- the further question of whether
those petitions should be granted.

Justice Breyer suggested that the court could adopt a "protective but
practical" standard for evaluating the merits of the petitions.

As he told Mr. Olson, Justice Breyer said: "If we go with you, it has the
virtue of clarity. There is a clear rule. Not a citizen, outside the
United States, we don't get your foot in the door. But against you is that
same fact. It seems rather contrary to an idea of a Constitution with
three branches that the executive would be free to do whatever they want,
whatever they want without a check."

Justice Breyer continued: "We have the possibility of really helping you
with what you're really worried about, which is undue court interference,
by shaping the substantive right to deal with all those problems of the
military that led you to begin your talk by reminding us of those
problems. So if that's the choice, why not say, `Sure, you get your foot
in the door, prisoners in Guanta'namo,' and we'll use the substantive
rights to work out something that's protective but practical?"

Mr. Olson barely had a chance to respond before Justice Antonin Scalia
began to make his argument for him. Addressing Mr. Olson, but clearly
aiming his rebuttal at Justice Breyer, Justice Scalia said: "We can't call
witnesses and see what the real problems are, can we, in creating this new
substantive rule that we're going to let the courts create."

He continued: "We have only lawyers before us, we have no witnesses, we
have no cross-examination, we have no investigative staff. And we should
be the ones, Justice Breyer suggests, to draw up this reticulated system
to preserve our military from intervention by the courts?"

The exchange provided one of the few dramatic moments of the argument,
indicating that however the court resolves this case, the decision is not
likely to be unanimous.

On Wed, 21 Apr 2004, dvanhorn wrote:

> Jessie and I were talking about this case last night.  I haven't had time to
> check out this video yet, but I'm sure it will be interesting.  Can someone
> post a transcript if they come across one?
>
> Rasul v. Bush & Al Odah v. U.S. (Guantanamo Bay Case Oral Arguments) (04/20/2004)
>
>     rtsp://video.c-span.org/project/spec/spec042004_sc.rm
>
> David
>
> PS Interesting tidbit on market place today: it's turn off your television
> week, and coincidentally it's library week.  Further there are more libraries
> in this country than McDonald's.  I'm lovin' it.
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