In a moment of rotten timing, dueling legal groups from the right and the left converged yesterday, both holding lunch events at the National Press Club to offer assessments and predications for the upcoming U.S. Supreme Court term, which starts Monday.
The conservative Federalist Society offered up better food (watercress and pear salads, on plates, no less), while the liberal upstart American Constitution Society got by on boxed lunch. Likewise, the presenters couldn’t be farther apart ideologically, but both groups agreed on one thing: The most important cases coming before the high court this term involve detainees held by the government at Guantanamo Bay.
Major players on both sides of the detainee litigation previewed some of the arguments likely to be made before the justices in those cases, particularly in Boumediene v. Bush, which challenges Congress’ decision to strip foreign citizens confined at Gitmo of their right to seek relief from unlawful detention in the federal courts.
The case dates back to 2002, when the U.S. government forced Bosnia to hand over Lakmar Boumediene and five other Algerian-born men it accused of plotting to attack the U.S. Embassy in Sarajevo and then sent them to Guantanamo, where they’ve languished ever since. Bosnian prosecutors and police officials had previously conducted a lengthy criminal investigation that exonerated the men, and the Bosnian Human Rights Chamber had ruled that the men could not be deported. But the Bush administration threatened to withdraw peacekeeping troops from the country if the government didn’t turn over the suspects.
Since then the Bush administration has dropped any talk of an embassy plot and has instead come up with various creative explanations for why it’s still holding the men. According to the Washington Post, the military claimed one man was a security threat because he taught karate to Bosnian orphans and knew how to use computers. Another once performed mandatory military service in the Algerian army—as a cook. So Boumediene and the others challenged their detention in federal court.
But last year Congress passed the Military Commissions Act, which abolished federal court jurisdiction over habeas corpus petitions filed by the Guantanamo detainees. As a result, the U.S. Court of Appeals for the D.C. Circuit tossed out Boumediene earlier this year and, initially, the Supreme Court refused to hear an appeal. After what must have been a doozy of a request for rehearing written by former Solicitor General Seth Waxman, the court reversed itself and decided it would take the case after all—a virtually unprecedented decision that requires at least five votes. (Oral arguments in the case have yet to be scheduled.)
Georgetown law professor Neal Katyal laid out the detainees’ prospects yesterday for the ACS audience. Katyal is something of a legal rock star, a young, dashing media darling who successfully argued Hamdan v. Rumsfeld, the 2006 case in which the court determined that the Bush administration’s military tribunals for detainees were illegal. Katyal noted that the administration’s legal track record on detainee rights isn’t stellar, and the fact that the Supreme Court decided to grant certiorari in the Boumediene case doesn’t augur in its favor.
“It’s really hard to lose a case before the Supreme Court involving executive power in a time of war. It’s like flunking a class at Georgetown. You really have to try,” Katyal said, marveling at how badly the administration has fared in court and predicting that the detainees in Boumediene will prevail.
Down the hall before the well-fed Federalists, though, Gregory Katsas, acting associate attorney general, countered with a talk about, “Why we think we’re right.” Katsas’ legal credits include a full complement of right-wing red meat, cases involving everything from the Defense of Marriage Act and gays in the military to partial-birth abortion, and he’s been heavily involved in defending the administration’s enemy combatant policies. Despite his Harvard pedigree and Clarence Thomas clerkship, Katsas is not a rock star, except maybe to the Federalists, though even many of them were yawning by the end of his presentation.
Katsas launched into his lengthy spiel by talking forcefully about “aliens,” those foreign creatures the Bush administration believes have no constitutional rights at Guantanamo. As is so often the case with conservative legal arguments, Katsas highlighted the government’s need to avoid chaos and unpredictability.
“Imagine a world where the constitution does apply outside the U.S.?” he asked, going on to paint a dire portrait of Marines forced to knock and announce themselves (à la the Fourth Amendment) before searching caves in Pakistan for Osama bin Laden. But the real problem with granting all those “aliens” constitutional rights is that they’ have access to the federal courts, and, according to Katsas, “federal judges are not well situated to make the relevant judgments” in these cases, a view that might not be so well received by the numerous Federalist Society members who happen to sit on the federal judiciary.
Katsas also made the counterintuitive argument that the military adjudication system set up by the Bush administration actually has better protections for the detainees, er, aliens, than they’d otherwise receive in federal court. After all, he said, in the military system, “aliens can seek review for compliance” with the Military Commissions Act. Of course, the detainees in the military system don’t get lawyers, noted Katyal back at the ACS brown-bagger, so how exactly are they supposed to receive such a review?
Given the limp arguments coming from Justice, and the fact that the Supreme Court has already ruled that Guantanamo is essentially part of the United States and not, say, a cave in Pakistan, Katyal speculated that the administration would try to moot the detainee cases, possibly by releasing the men in question, before the Supreme Court can rule against them. “They know they have a weak case,” Katyal said.