Today's 90-minute oral argument in Hamdan v. Rumsfeld gave no clear indication of how the Court will rule, or even which questions it will choose to answer. Chief Justice Roberts was recused, and Justice Thomas characteristically silent, but the remaining seven justices were active in their questioning, particularly of Solicitor General Paul Clement. Experienced Court observers seem to have concluded that it was a tough day for the government; you can read two interesting accounts on SCOTUSblog and in the LA Times.
A few of the exchanges seemed especially notable. One question in the case involved the government's decision to charge Hamdan with "conspiracy" — a crime that Hamdan's counsel, Georgetown Law Professor Neal Katyal, persuasively argued does not exist under the laws of war. Justice Stevens asked the government whether the President had the authority to invent a new crime under of the laws of war, then charge a detainee for its violation. Yes, answered Clement: the President possesses the "pure constitutional power" to do so, if he chooses.
Justices Scalia and Alito — the only two justices whose sympathy for the government's position was apparent — repeatedly advanced the argument that the Court's consideration of the case was premature, and that the Court should wait until after the military commissions had rendered verdicts before evaluating their legitimacy. That would be a mistake, said Katyal: Hamdan contends that the commissions have no basis in law, and therefore the question whether he is being tried by a legitimate tribunal is a threshold one. If this were a criminal case, Justice Scalia asked, wouldn't the Court wait until all proceedings were completed before weighing in? Wasn't that the rule? Justice Kennedy — the likely swing vote in this case — interjected in support of Hamdan's position. What if a "group of people" decided to hold someone and put him on trial for war crimes, he asked. Would the Court wait until after proceedings to rule on whether those people were a "regularly constituted court"? Wasn't it the "historic function of habeas" to answer that question?
Justices Souter and Breyer were most concerned about the consequences of the government's argument that Congress had divested the courts of jurisdiction over habeas corpus claims. Had Congress expressly suspended the writ of habeas corpus, as the Constitution permits only in times of "invasion or insurrection"? Should the Court require a clearer indication of congressional intent before reaching such a conclusion? In Souter's words, was not suspension of habeas corpus "just about the most stupendously significant action" that Congress could take? Clement tried to deflect these questions but was repeatedly cut off by the justices. It was yet another demonstration that the justices do not take lightly attempts by the other branches to strip courts of their traditional authority.