To hear Lyle Denniston tell it, the government had a rough day in front of the Supreme Court justices today, and the "existing ‘military commission’ scheme may well fail". Good.
And no, Scalia didn’t recuse himself, although he opined on the subject matter earlier this month.
With Justice Antonin Scalia taking part — and, in fact, providing the only clearcut signs of unstinting support for the federal government’s arguments — the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously — and repeatedly — advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress’ power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail.
If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the "military commissions" to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the "commission" system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far — terrorism conspiracy. There was little exploration of an ultimate argument against the "commission" setup: the claim that the President had no power to create them on his own, without specific authorization from Congress.
With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kenney might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed trouble about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees’ lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals’ authority to try.
There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees’ rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court’s most fervent supporter of presidential wartime powers.
The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia’s points as if they were stronger than his own.