Rasul v. Bush - Oral Argument

Argument of John J. Gibbons

Chief Justice Rehnquist: We'll hear argument now on 03-334, Shafiq Rasul vs. George W. Bush and a companion case.

Mr. Gibbons.

Mr. Gibbons: Mr. Chief Justice, and may it please the Court:

What is at stake in this case is the authority of the Federal courts to uphold the rule of law.

Respondents assert that their actions are absolutely immune from judicial examination whenever they elect to detain foreign nationals outside our borders.

Under this theory, neither the length of the detention, the conditions of their confinement, nor the fact that they have been wrongfully detained makes the slightest difference.

Respondents would create a lawless enclave insulating the executive branch from any judicial scrutiny now or in the future.

Chief Justice Rehnquist: Mr. Gibbons, I understand that your clients have been detained approximately two years?

Mr. Gibbons: That's correct, Your Honor.

Chief Justice Rehnquist: Supposing they had only been detained six months, how much would that weaken your case?

Mr. Gibbons: It wouldn't weaken it at all because as I'll get into in the argument, the case depends on compliance with provisions of a binding treaty, which requires a prompt determination of their status.

Justice Kennedy: So they would have had a habeas corpus entitlement, in your view, within weeks after their, after their detention?

Mr. Gibbons: They would have had entitlement to the process specified in the Geneva Convention, and if they had that process...

Justice Kennedy: Did they have that right when they were in Afghanistan?

Mr. Gibbons: They allege not, and on this record, you have to assume that, as did the Court of Appeals.

Chief Justice Rehnquist: But now in Johnson vs. Eisentrager, we said that the Geneva Convention did not confer a private right of action.

Mr. Gibbons: Your Honor, the question of the private right of action really is not presented in this case.

We are not asking to imply a private right of action from the Geneva Convention or any other treaty.

What we are saying is that the cause of action is created by the Habeas Corpus Statute and by the Administrative Procedure Act.

The treaty provides a rule of decision, not a cause of action.

Justice O'Connor: Well, I guess, at least the question presented is just whether the Federal court has jurisdiction under the Habeas Statute, Section 2241, is that right?

Mr. Gibbons: That's correct.

Justice O'Connor: And you don't raise the issue of any potential jurisdiction on the basis of the Constitution alone.

We are here debating the jurisdiction under the Habeas Statute, is that right?

Mr. Gibbons: That's correct, Justice O'Connor.

As a matter of fact...

Justice Scalia: 1331.

I thought...

Mr. Gibbons: It doesn't depend on Section 1331, although the Administrative Procedure Act claim does depend on Section 1331.

Justice Breyer: That's what I'm asking.

Justice Scalia: Is that here or not?

You mentioned the APA claim.

Mr. Gibbons: Yes.

Justice Scalia: I thought you were still asserting that, are you not?

Mr. Gibbons: Yes.

I'm asserting that.

Justice Scalia: So it isn't just habeas then, it's also...

Mr. Gibbons: That does...

Justice Kennedy: It's also 13...

Mr. Gibbons: Your Honor, Justice Scalia, it does depend on Section 1331.

Justice Scalia: So we have two things, the Habeas Statute and 1331?

Mr. Gibbons: Yes.

Justice Souter: But you still win.

Mr. Gibbons: Now...

Justice Souter: If you win under the Habeas Statute?

Mr. Gibbons: Oh, absolutely.

Justice Souter: Yes.

You don't need both.

Mr. Gibbons: No.

We don't.

Now, if you look at the Court of Appeals ruling in this case, the Court of Appeals assumed that these people were friendly aliens, assumed that they had never been members of any armed forces, and had never carried out any belligerent activity against the United States.

Assumed that they had never had the hearing required by the Geneva Convention to determine whether or not in fact they were civilians who should have been repatriated.

What the Court of Appeals held was, and it's on page 1141 of the court's opinion, if the Constitution does not entitle detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or legality of restraints on their liberty.

Thus the Court of Appeals assumed that the... that the result turned on the absence of a constitutional right, and that simply misreads the Habeas Corpus Statute.

Section 2241(c)(1), which is carried forward in virtually identical language from Section 14 of the Judiciary Act of 1789, antedated the Bill of Rights.

All it required, all it has ever required is Federal custody simpliciter, and that gives habeas corpus jurisdiction.

Justice Kennedy: Well, but other than producing the person before the court so that the system is satisfied that we know where the person is, surely you have to go beyond that and assert some sort of right.

And you... you say that...

Mr. Gibbons: Of course.

Justice Kennedy: the Geneva Convention is really not the basis for the cause of action, which I agree, so where do we go after that?

Justice Scalia: So he is here in front of the court.

Now what?

Mr. Gibbons: Your Honor, the Geneva Convention is the supreme law of the land.

That's what the Constitution says about habeas.

Justice O'Connor: But it may not be self-executing.

That's the problem, I guess.

Justice Breyer: The indications are it's not.

Mr. Gibbons: Your Honor, Your Honor...

Justice Kennedy: Forgetting the Geneva Convention, what happens when the person comes before the court?

You prevail and there is a writ of habeas corpus, it comes here, and the judge says, now what am I supposed to do.

Mr. Gibbons: What the judge is supposed to do is determine first whether or not the government's response that the detention is legal is in fact an adequate response.

Now, the government in this case probably will respond, we don't have to give the hearings required by the Geneva Convention.

But if you're going to treat a binding United States treaty as the supreme law of the land, that is not an adequate answer.

Now, this question of, is the treaty self-executing or not self-executing, I suggest is a straw man.

Since 1813, if a treaty provides a rule of decision and something else provides a cause of action, the treaty nevertheless provides the rule of decision.

That was several...

Chief Justice Rehnquist: But Johnson said quite specifically that the Geneva Convention was not available to the Petitioners in that case because it did not confer any right of action.

Mr. Gibbons: Well, Your Honor, I think the latter part of your sentence is probably an overreading of Johnson.

In Johnson, which I suggest is clearly distinguishable from this case, there were three critical facts.

One was that they were admitted enemy aliens.

Our Petitioners plead that they are not.

The other was that they had a hearing before a military tribunal which comported with Federal legislation and with the extant rules of international law, and our Petitioners have had no such hearing.

Justice Scalia: Well...

Justice Souter: But I take it you are...

Justice O'Connor: if you, if you, if your clients here had been given the review that has been described to us in the government's brief, by military authorities to determine whether these people are indeed being held as enemy combatants, would you be here if you knew that that review had been provided?

Mr. Gibbons: We would not be.

What we are seeking is the review provided...

Justice Scalia: Well, I don't see how that...

Justice Stevens: Wouldn't that depend on what the review showed?

You have alleged that your clients were not enemy aliens.

If it showed they were tourists, they were just picked up by mistake, would you be here or would you not be here?

Mr. Gibbons: If they were detained after a hearing determined that they were civilian detainees who under Article IV of the Geneva Convention should be repatriated, we would be here.

Justice Scalia: I don't see how those merits question go to the issue of jurisdiction of the Court.

It may well be that if those factors you mentioned were changed, you'd be entitled to judgment here, even though the plaintiffs in Eisentrager were not entitled to judgment, but we are not talking about the merits right now.

We are talking about jurisdiction.

Certainly jurisdiction doesn't turn on the merits whether you were an enemy alien or not.

Mr. Gibbons: Well, I suggest that a fair reading of Eisentrager is that that did turn on the merits.

Justice Souter: No, but I thought your... may I, may I ask you this, because I'm having the trouble Justice Scalia is having.

I thought your principal argument on the basis of Eisentrager was that it cannot stand for the proposition that there is no jurisdiction because in fact, in Eisentrager, there was enough mention of matters on the merits so that it was clear that's what was driving the ultimate resolution in Eisentrager.

And it cannot stand for the proposition that a court cannot even inquire, and the only issue we have got is whether under the Habeas Statute the court can even inquire.

Do I misunderstand your position?

Mr. Gibbons: No, you do not, Justice Souter.

Justice Souter: Okay.

Mr. Gibbons: It's our position that Eisentrager was a decision on the merits as a matter of fact.

The Court says that they... Petitioners were extended the same preliminary hearing as the sufficiency application that was extended in Quirin, Yamashita and Hirota versus McArthur, all of which were decisions on the merits.

Chief Justice Rehnquist: But in several different places, Mr. Gibbons, in Eisentrager, the Court says that we are talking about the Habeas Statute, and we are saying these Petitioners are not entitled to habeas.

Mr. Gibbons: Well, they are not as a matter... let me be clear about that.

The result on the merits in Eisentrager is perfectly correct.

What the Court did in Eisentrager was apply the scope of review on habeas corpus, which was standard at that time.

If the military tribunal had lawful jurisdiction, that ended the habeas inquiry.

Justice Stevens: Well, there is another problem.

At that time, that case was decided when Ahrens against Clark was the statement of the law, so there is no statutory basis for jurisdiction there, and the issue is whether the Constitution by itself provided jurisdiction.

And of course, all that's changed now.

Mr. Gibbons: Well, Your Honor, in Eisentrager, both the Court of Appeals and the Supreme Court made it clear that they disapproved, they were not adopting the ruling of the District Court based on Ahrens v. Clark.

Of course, in any event, that does not go to subject matter jurisdiction.

That's a Rule 12(b)(2) issue of in personam jurisdiction, whether a proper Respondent is before the Court.

In Eisentrager, the Court assumed...

Justice Stevens: Well, you raised the question of whether the territorial jurisdiction provision covered it.

There was no territorial jurisdiction if they were outside the district under the ruling in Ahrens against Clark, which means they had to rely on the Constitution to support jurisdiction, which in turn means that once they have overruled Ahrens against Clark, which they did, there is now a statutory basis for jurisdiction that did not then exist.

Mr. Gibbons: Your Honor, respectfully, I don't think you can fairly read Justice Jackson's opinion as adopting the Ahrens v. Clark position.

Justice Stevens: No.

But Ahrens v. Clark was the law at the time of that decision, and it was subsequently overruled.

So that... that case was decided when the legal climate was different than it has been since Ahrens against Clark was overruled.

Mr. Gibbons: Well... in any event...

Justice Scalia: Let me help you.

Mr. Gibbons: In any event, there is no question that the Ahrens v. Clark rule does not apply today.

These Respondents are the proper Respondents.

Justice Scalia: Of course, it's a question of how much it doesn't apply, whether it doesn't apply only when there is at least clear statutory jurisdiction in one, in one Federal court so it's almost a venue call.

It isn't clear that it's been overruled when there is no statutory jurisdiction in any Federal court.

That's certainly an open question.

Mr. Gibbons: Well, Your Honor, as to the absence of jurisdiction, 2241(c)(1) could not be plainer.

It's been plain for 215 years.

If there is Federal detention and there is a proper Respondent before the Court as there is, there is habeas corpus jurisdiction.

I don't see any, even ambiguity in that statute.

Justice Kennedy: What do you do if you have a lawful combatant in a declared war, and the combatant, an enemy of the United States is captured and detained, habeas?

Mr. Gibbons: Habeas, you mean on the battlefield?

Absolutely not.

Justice Scalia: We'll take it from the battlefield, and a week later, 10 miles away, then six months later, a thousand miles away.

Mr. Gibbons: In the zone of active military operations or in an occupied area under martial law, habeas corpus jurisdiction has never extended.

Justice Kennedy: Suppose it's Guantanamo.

Mr. Gibbons: Well, the...

Justice Kennedy: A declared war and a lawful combatant.

Mr. Gibbons: A declared war and someone who has been determined to be a combatant in accordance with Article V of the Geneva Convention, an application for a writ of habeas corpus in those circumstances would, under Rule 12(b)(6), be summarily dismissed.

Justice Kennedy: You are close to the merits.

You are back to the Geneva Convention again, so I just have to assume your case depends on the Geneva Convention.

Mr. Gibbons: Well, it...

Justice Kennedy: It's not self-executing.

Mr. Gibbons: It depends on the Geneva Convention and on the military regulations duly adopted and binding on the military forces of the United States.

Justice Souter: But isn't that the merits case that you are talking about?

I mean, your jurisdictional argument doesn't depend, as I understand it, on military regulations or the Geneva Convention.

It depends on this statute.

Mr. Gibbons: No.

It does not.

Justice Souter: If you get into court, your clients may raise Geneva Convention and all sorts of things, but that's not what your case here depends on.

Mr. Gibbons: No.

Our position is that the Habeas Corpus Statute has meant what it said since 1789.

Justice Breyer: I mean, you have to think down the road, is there an alternative to the Geneva Convention that is on the substantive claim.

I was also thinking, and here I want your view on it, that if you have, if they get in the door, and now they have a claim that they are being held without a competent tribunal assessing it, you get to your route as well by saying that the part about the Fifth Amendment in Eisentrager is, in effect, overruled by Reid v. Covert.

And in fact, if you follow Harlan and by following Harlan, you apply some kind of due process, and the Geneva Convention comes in to inform the content of that due process.

Now, is there an argument there or not?

Mr. Gibbons: There certainly is, Your Honor, but since...

Justice Breyer: You're not simply being polite?

Justice Scalia: I want to...

Unidentified Justice: [Laughter]

Mr. Gibbons: I have more to say about it.

Justice Ginsburg: But you do have the impediment, Mr. Gibbons, that the D.C. Circuit said it decided the merits as well as jurisdiction, so I think Justice O'Connor and Justice Kennedy were asking you before, well, if you prevail on jurisdiction under that opinion, don't you go out the door immediately because the D.C. Circuit said, at least as far as the Constitution is concerned, nonresident aliens have no due process rights.

Mr. Gibbons: As far as the Constitution is concerned, that's what the District of Columbia Circuit said.

Now, as to whether or not that's right...

Justice Scalia: But that's not the point.

Mr. Gibbons: First of all...

Justice Ginsburg: Whether... as I take it we ask you to address only the bare jurisdictional question.

Mr. Gibbons: The bare jurisdictional question depends on Federal custody simpliciter, and then the Court goes on to decide, is there any legal basis for the government's response to the writ.

Justice Scalia: Can I ask this, Mr. Gibbons.

If the jurisdictional question rests on Habeas Statute simpliciter, without reference to the Geneva Convention or any of the other merits points that you've been raising, how then do you answer Justice Kennedy's question if the merits are out and it doesn't matter whether you are a combatant or noncombatant, is there jurisdiction when somebody is captured on the field of battle and held immediately on the field of battle, why wouldn't there be jurisdiction there?

The only answers you give are merits answers, not jurisdictional answers.

Mr. Gibbons: Your Honor, what I'm suggesting is that whether you call it jurisdiction or whether you call it the merits, in the battlefield situation, it's going to go out under Rule 12, in any event.

Chief Justice Rehnquist: But that's, that's quite different.

I mean, all we are theoretically talking about here is jurisdiction.

And the idea that, you know, you have Justice Kennedy's example, a lawful combatant, a declared war, detained at Guantanamo maybe two months after he is captured, and an action's brought here in the District of Columbia for habeas corpus and what does a... what does a judge say when he considers that sort of petition?

Mr. Gibbons: When he sees that petition, he should dismiss it summarily, whether he dismisses it under 12(b)(1) or 12(b)(6), it won't take him any more time.

Habeas corpus, as the historians' brief, and others among the amici point out, has never run to the battlefield, as a matter of habeas corpus common law.

And it is, after all, a common law writ.

It has never run to any place except where the sovereign issuing the writ has some undisputed control.

Justice Kennedy: Well, suppose at Guantanamo, you still have to summarily dismiss under the hypothetical, right?

Mr. Gibbons: Yes, Justice Kennedy... Kennedy, and the Court of Appeals did rely on some mystical ultimate sovereignty of Cuba over, as we Navy types call it, Gitmo, treating the Navy base there as a no law zone.

Now, Guantanamo Navy base, as I can attest from a year of personal experience, is under complete United States control and has been for a century.

Justice Ginsburg: We don't need your personal experience.

That's what it says in the treaty.

It says complete jurisdiction.

Mr. Gibbons: That's exactly what it says.

Justice O'Connor: Complete jurisdiction.

Mr. Gibbons: That's exactly what it says... yes.

Chief Justice Rehnquist: Now, it also says Cuba retains sovereignty.

Mr. Gibbons: It does not say that.

It says that if the United States decides to surrender the perpetual lease, Cuba has ultimate sovereignty, whatever that means.

Now, for lawyers and judges dealing with the word sovereignty, it doesn't self-define.

Justice Scalia: Excuse me.

Does it say that, Cuba has ultimate sovereignty only if the United States decides to surrender?

Mr. Gibbons: Yes.

Justice Scalia: Where would that text be?

Chief Justice Rehnquist: I did not realize that was there.

Mr. Gibbons: Perhaps one of my colleagues can find the language in the appendix.

Chief Justice Rehnquist: Why don't you go ahead.

Mr. Gibbons: But, for example, if one of the detainees here assaulted another detainee in Guantanamo, there is no question they would be prosecuted under American law because no other law applies there.

Cuban law doesn't apply there.

Now, if the test is sovereignty, that term must be given some rational meaning by judges.

Respondents concede that habeas corpus would extend to citizens detained in Guantanamo.

That would be no interference with Cuban sovereignty, and extending habeas corpus to noncitizens there is no more an interference with Cuban sovereignty.

If there isn't... if there isn't sovereignty over that base where no law applies, legislative, judicial or otherwise, the term has no meaning.

Sovereignty for legal purposes must at least mean that some political organization has a monopoly on sanction in that defined geographic area.

Justice Scalia: Mr. Gibbons, I'm quoting from page 8 of the government's brief, which I assume is an accurate quote of the treaty.

It doesn't just say that Cuba has sovereignty if we give up the lease.

It says the United States... this is the treaty, recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the leased area.

Now I take that to mean that they are sovereign even during the term of the lease.

You may say it's artificial, but there it is.

Mr. Gibbons: I...

Justice Scalia: It's the law of the land, as you say.

Mr. Gibbons: I misspoke, Justice Scalia, by omitting the reference to continuing.

But it doesn't make any difference.

That continuing sovereignty... Queen Elizabeth is the nominal sovereign of Canada.

That doesn't determine whether or not Canadian courts can grant a writ of habeas corpus.

She's also the nominal sovereign of Australia.

Justice Scalia: I don't think sovereignty is being used in the same sense.

I mean, it would be a good point if you...

Mr. Gibbons: Well, that's the point.

Justice Scalia: If you said that England was sovereign over Canada, and I don't think anybody would say that.

Mr. Gibbons: But if the reference in the lease meant that Cuban law somehow applied in the United States Navy base at Guantanamo Bay, that would be one thing.

But 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.

Justice Scalia: But you couldn't sublease...

Justice Breyer: Mr. Gibbons...

Justice Scalia: could we... we couldn't sublease Gitmo and we couldn't sell any of Gitmo to a foreign country, could we?

Why not?

Because Cuba is sovereign.

Mr. Gibbons: Well, there are all sorts of treaties in which the United States, or perhaps leases in other respects, in which the United States limits its own authority, but that doesn't mean that the United States has surrendered its sovereignty.

Justice Ginsburg: Is it like a Federal enclave within a State?

I was trying to think of anything that might be... resemble this relationship of the United States to a territory inside another territory?

Mr. Gibbons: Well, Guantanamo is to some extent unique.

One of the amicus briefs that served a United States Navy base elsewhere points out that this is the only base, for example, where the United States has not entered into a status of forces... forces agreement.

It's not at all clear that we have exclusive jurisdiction, civil jurisdiction in any of our other enclaves in foreign countries.

But we have exclusive jurisdiction and control over civil law in Guantanamo, and have had for a century.

So it's... so 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.

Now, in some other places where the United States has a base, there may be other civil authority that can demand an accounting.

But what the executive branch is saying here is we don't have to account to anyone, anywhere.

Justice Breyer, you asked me a question before, and someone else, that's not unusual, interrupted before I answered you.

And to tell you the truth, I don't remember your question at this point.

Justice Breyer: I can explore it with the Solicitor General possibly.

Mr. Gibbons: Well, Your Honor, I was also asked a question about whether or not aliens had any constitutional rights.

In Verdugo, speaking for four members of the Court at least, Mr. Chief Justice, you said that Eisentrager stood for the proposition that...

Chief Justice Rehnquist: I think I was speaking for five.

I think Justice Kennedy joined the opinion.

Mr. Gibbons: Well, he did.

But he wrote separately, I think, and at least cast some doubt on whether or not he agreed with your position that there is no Fifth Amendment right for an alien outside the United States.

Now, of course, that reading of Eisentrager assumes that it was a decision on the merits and not a jurisdictional decision.

But be that as it may, our position, and again, it's not necessary for reversal in this case, and perhaps should not even be addressed because you could avoid a constitutional decision by making a statutory decision, but our position is that that statement in Verdugo is overbroad.

Argument of Theodore B. Olson

Chief Justice Rehnquist: Thank you, Mr. Gibbons.

General Olson, we'll hear from you.

Mr. Olson: Mr. Chief Justice, and may it please the Court:

The United States is at war.

Over 10,000 American troops are in Afghanistan today in response to a virtually unanimous Congressional declaration of an unusual and extraordinarily... extraordinary threat to our national security, and an authorization to the President to use all necessary and appropriate force to deter and prevent acts of terrorism against the United States.

It's in that context that Petitioners ask this Court to assert jurisdiction that is not authorized by Congress, does not arise from the Constitution, has never been exercised by this Court...

Justice Stevens: Mr. Olson, supposing the war had ended, could you continue to detain these people on Guantanamo?

Would there then be jurisdiction?

Mr. Olson: We believe that there would not be jurisdiction, just...

Justice Stevens: So the existence of the war is really irrelevant to the legal issue?

Mr. Olson: It is not irrelevant, because it is in this context that that question is raised, and I would... the question, the case of Johnson vs. Eisentrager, which we have discussed here, even the dissent in that case said that it would be fantastic to assume that habeas corpus jurisdiction would exist in the time of war.

So that that case is not...

Justice Stevens: No, but your position does not depend on the existence of a war?

Mr. Olson: It doesn't depend upon that, Justice Stevens, but it's even more forceful.

And more compelling.

Because all of the Justices in the Eisentrager case would have held that there was no jurisdiction under these circumstances.

Justice O'Connor: What if one of the Plaintiffs were an American citizen here, being held in Guantanamo.

Mr. Olson: We have not...

Justice O'Connor: Jurisdiction under Habeas Statute?

Mr. Olson: We would acknowledge jurisdiction.

The Court has never...

Justice O'Connor: Excuse me.

Mr. Olson: We would acknowledge that there would be jurisdiction...

Justice Kennedy: Why?

Mr. Olson: under the Habeas Corpus Statute for the reasons that are explained in Eisentrager itself, that citizenship is a foundation for a relationship between the nation and the individual and a foundation for...

Justice Stevens: Is that sufficient to give us jurisdiction over Guantanamo, which is another sovereign?

Mr. Olson: With respect to the individual.

We would, we would still argue...

Justice Stevens: What if the American citizen was in the middle of the battlefield in Iraq?

Mr. Olson: We would still argue that the jurisdiction under the Habeas Statute would not extend under these circumstances to a wartime situation, Justice Stevens, but that the... what the Eisentrager Court said, that there is enhanced respect with respect to the power of the Court under the habeas corpus jurisdiction with respect to questions involving citizenship.

But what was unquestionable with respect to that case is that an alien who had never had any relationship to the United States and who was being held as a result of a combat situation or a war situation in a foreign jurisdiction, there was no jurisdiction under the Habeas Statute.

Justice Souter: Well, it's clear that there was no relief.

What do you say to Mr. Gibbons' position that because in fact they did discuss the merits, that case cannot really be taken as authority for the... leaving Ahrens and Braden aside, that the case cannot be taken as authority for the proposition that there is no jurisdiction in the sense of allowing the person through the door to make whatever claim the person wants to make.

What is your response to that?

Mr. Olson: Our response to that is throughout the decision in Eisentrager, the Court referred to the question of jurisdiction.

Justice Breyer: Oh, it did.

Mr. Olson: It starts...

Justice Souter: I'm really not asking a question about, frankly, about the Court's terminology.

I'm asking about the holding in the case.

Mr. Olson: The holding...

Justice Souter: The mere argument is you can't say it held anything more than that there was no relief at the end of the road.

Mr. Olson: It held that there was no relief at the end of the road, because the ultimate question, to use the words of the Court, the ultimate question is jurisdiction.

The Court over and over again said that we are deciding how far the Habeas Statute reaches.

Justice Ginsburg: General Olson, would you look at page 777 of the Johnson v. Eisentrager opinion, and it says... this is a hard opinion to fathom, but it does say we are here confronted with, and there is a whole list of things.

And one of them is, is an enemy alien, and another is, was tried and convicted by a military commission sitting outside the United States.

Why would the Court think it necessary to say this is what we confronted in this case which makes it worlds different from our case, where there has been no trial and conviction, where these people are saying, and we must accept for the moment that it's true, that they are innocents.

That they are not combatants of any kind.

Mr. Olson: Well, those were unquestionably facts that related to the case, that related to the facts that came to the Court, but in the very next paragraph, the Court goes on to say that we have pointed out that the privilege of litigation has been extended to aliens whether friendly or enemy, that specifically addresses one of the points you mentioned, only because permitting their presence in the country implied protection.

And the Court went on to say, no such basis can be invoked here for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of the United States.

And earlier in that...

Justice Ginsburg: Their trial and their punishment.

This is a completed episode.

This is a very difficult decision to understand.

I would say it's at least ambiguous.

Mr. Olson: It seems to me... it seems to me that those statements all have to be read in the context... context of the Court saying the ultimate question is jurisdiction.

Justice Ginsburg: But it was so unnecessary to say, to give that list that appears on page 777.

Mr. Olson: Well, I suspect that there are many decisions of this Court where, when the Court is dealing with the facts of a specific case, especially in the context of a Court of Appeals decision, if the Court were to turn to the briefs that were written before to present the issue in this Court, the only... the question presented, submitted in this case, in this Court, in Eisentrager was the jurisdiction under the Habeas Statute.

But the case arose in the context where the Court of...

Justice Stevens: Was it really... was it really under the Habeas Statute or under the Constitution?

Mr. Olson: It was...

Justice Stevens: Because if the, if the views of the dissenters in Ahrens against Clark were the law at that time as they perhaps are now, then there would have been statutory jurisdiction, which was not present at that time.

Mr. Olson: But the Court was specifically focusing on the jurisdictional incidents attached to the condition of the individual...

Justice O'Connor: But the Eisentrager Court never once mentioned the statute, the Habeas Statute in its opinion.

What it seemed to do was to reach the merits and say at the end of the day, these people have no rights.

They have had a trial under the military tribunal and they have no rights that could be granted at the end of the day, and no mention of the Habeas Statute.

Mr. Olson: The Court specifically did say, but did not mention the statute, Justice O'Connor, but the statute is mentioned throughout the briefs, in the government's brief when it says what... the statute at issue, the Habeas Corpus Statute and within its territory, the language of Part A.

The statute that exists today is the same statute that the Eisentrager Court was considering.

Justice Souter: Well, the briefs may have mentioned it, but wasn't the problem that Eisentrager had to confront, the problem created by Ahrens, construing respective jurisdiction, and therefore, the only way there could be habeas jurisdiction in Eisentrager was if due process demanded it.

And the Court went on to say, well, there are various reasons why there is no ultimate due process entitlement, and therefore, due process does not demand entertainment of jurisdiction.

After Braden, that argument is gone.

Why, therefore, is Eisentrager not undercut to the point where it's no further authority on the jurisdictional point?

Mr. Olson: Well, it seems to me again the entire opinion has to be taken in context.

The Court did specifically say that there is no statutory authority.

It didn't say, it didn't identify by number a provision of the code, but it specifically said no statutory authority.

Justice Stevens: The reason it said that was because Ahrens was then the law.

Justice Scalia: Yeah.

Justice Stevens: And that was very clear in the Court of Appeals opinion.

They rested their decision solely on the Constitution.

Mr. Olson: Well, Justice Stevens, I submit that in the context of the case, in the context of the way the dissent understood it, as well as the majority understood it...

Justice Stevens: Yes, but the fact case was... the case was decided when the majority view in Ahrens was the law, and that is no longer the law.

Mr. Olson: Well, we would submit that Ahrens, the over... partial overruling, I think, has been pointed out before.

Ahrens has no effect on the vitality of the Eisentrager case.

The Court made clear that it was deciding... and everyone... the reason I mentioned the briefs is the context in which the case was presented to the Court, and argued to the Court and the decision that was made by the majority in the Court, focusing on the identity of the Petitioner, whether alien or friendly.

Justice Black in his dissenting opinion says this decision would apply to whether someone was hostile or not, and the entire context of the case, Justice Stevens, it seems to me, and does not...

Justice Stevens: The context of the case was it was decided at a time when Ahrens against Clark was the law.

And if the dissenting opinion in Ahrens against Clark had been the law, it would have been decided differently.

Mr. Olson: Well, it seems to me that a fair reading of the case goes much further than that, because the Court was not focusing on that.

It didn't specify that it was making its decision on that basis.

It did specify over and over again, and the dissent referred to this as well, that it was focusing on the fact that the individuals bringing the petition had no sufficient contacts with the United States.

That's in part why the Court distinguished...

Justice Stevens: And that's a complete response to an argument resting entirely on the Constitution.

Justice Scalia: Did it cite Ahrens?

Mr. Olson: It did not, as I'm...

Justice Scalia: I don't recall.

Mr. Olson: I don't recall that it did.

The District Court...

Justice Scalia: Kind of extraordinary if it was relying entirely on that...

Mr. Olson: The District Court relied upon that decision.

The Court of Appeals went much further with respect to... in fact, the Court, and this Court, Justice Jackson's opinion for the Court in this case specifically points out that the Court of Appeals went back to something it called fundamentals, because it couldn't find any authority in either the statute or the Constitution.

Chief Justice Rehnquist: Well, didn't the Johnson opinion also say, we don't have to concern ourselves here with the proper custodian.

We kind of finesse that point?

Mr. Olson: I believe that's a correct characterization.

What... the other portion of the decision that it seems to me important to recognize is that this is a decision that was widely perceived, and has been consistently perceived, as a definition of the scope of the Habeas Statute.

Going back to the early 1800s, this Court decided that the extent of habeas jurisdiction arose from the statute, not from the common law.

Justice Kennedy: That gets me back to your statement that if this had been a citizen held in Guantanamo, that habeas would be available.

But the statute doesn't talk about citizens.

It says prisoners held under the authority of the United States.

Now, if the citizen can say that he is a prisoner held under the authority of the United States in Guantanamo, why couldn't a noncitizen under the statute say the same thing?

Mr. Olson: I think, Justice Kennedy, the answer to that is, in the first place, we are not, we are not saying that there necessarily would be jurisdiction there, but we are saying that the Court... that the Court would go further with respect to that because, and this is also in Eisentrager and a number of other Court's... of this Court's decisions, that the Court will find more protection for citizens as a result of the relationship going back...

Justice Kennedy: Well, but the only way we can do it...

I don't, I don't mean to misconstrue it or to misstate it, I had thought you said at the outset that if this had been a citizen of the United States held in Guantanamo, there would be habeas corpus.

Mr. Olson: We are not... we are saying that we would not be contesting it, Justice Kennedy, and the Court will be dealing with other issues involving citizens.

Justice Stevens: You don't have to contest the jurisdictional objection.

If there is no jurisdiction, there is no jurisdiction, whether you contest it or not.

Mr. Olson: Well, I guess the only way I can answer this, Justice Stevens, is to say that what the Court seemed to say, not only in the majority opinion, but in the dissenting opinion, that more rights would be given to citizens...

Justice Souter: No, but there are no rights that can be recognized unless there is jurisdiction in the first place.

And if the Court is going to make good on what you have just said it said, it has got to do so presupposing jurisdiction.

So if you are going to rely upon those statements, don't you necessarily have to concede jurisdiction?

Mr. Olson: I don't...

Justice Souter: With respect to the citizen?

Doesn't make any difference if they have got lots of rights if there is no jurisdiction to get into a court to enforce them.

Mr. Olson: I think that the answer is that that does not necessarily follow.

The Court has not reached that decision yet, and that's something that is not before the Court.

Justice Scalia: Certainly the argument is available that in that situation, the Constitution requires jurisdiction.

The Constitution requires that an American citizen who has the protection of the Constitution have some manner of vindicating his rights under the Constitution.

That would be the argument.

Mr. Olson: I agree with that, justice Scalia, and this Court has said again and again that...

Justice Scalia: And that was part of his argument in Eisentrager.

Mr. Olson: And it was... and in that case, the Court specifically said the Fifth Amendment did not extend to the Petitioners in that case.

The Court has said that again in the Verdugo case in terms of the Fourth Amendment.

Justice Souter: Is that your answer to Justice Kennedy, that there would be jurisdiction because due process would require it for citizens, but there would not be statutory jurisdiction in the case of the citizen at Guantanamo?

Mr. Olson: I think it would be an interpretation.

And what this Court is doing is interpreting the statute because the Habeas Corpus Statute defines the extent of rights...

Justice Souter: Well, but what is the position... I mean, I want to know what the position of the United States is for the same reason Justice Kennedy does.

Mr. Olson: Our answer to that question, Justice Souter, is that citizens of the United States, because of their constitutional circumstances, may have greater rights with respect to the scope and reach of the Habeas Statute as the Court has or would interpret it.

That case has never come before this Court, and it's important to emphasize that...

Justice Kennedy: You go outside of the statutory language for your case that's in front of us.

Mr. Olson: Excuse me, Justice...

Justice Kennedy: You are going outside of the statutory language to resolve both the hypothetical case and the case in front of us.

This is a prisoner, and he is detained under the authority of the United States.

Mr. Olson: And this Court construed those provisions in the Eisentrager case and determined that the statute did not reach aliens that did have no contact with the United States and were held in a foreign jurisdiction outside the sovereignty of the United States.

Justice Stevens: It did not construe the statute.

It assumed the statute was inapplicable and concluded that the Constitution was not a substitute for the statute.

Mr. Olson: Well, Justice Stevens, I respectfully disagree.

I think the Court was construing the statute not to be applicable, then it went on because the Court of Appeals had addressed the constitutional question.

Justice Stevens: Not a word, not a word in the opinion that supports it.

Mr. Olson: Well, I respectfully disagree.

The Court does say, we don't find any authority in the statute.

We don't find any authority in the Constitution.

We will not go to so-called fundamentals to find it someplace else.

That is consistent with what this Court decided in the...

Justice Breyer: Well, it's obvious that there is language in Eisentrager that supports you, obvious to me, but you have just heard that judges don't always distinguish between 12(b)(1) and 12(b)(6), not even in this Court, at least we don't always get it right.

And there is also language, as you have heard, that's against you.

I think there is some in there.

So what I'm thinking now, assuming that it's very hard to interpret Eisentrager, is that if we go with you, it has a virtue of clarity.

There is a clear rule.

Not a citizen, outside the United States, you 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.

That's problem one.

Problem two is that we have several hundred years of British history where the cases interpreting habeas corpus said to the contrary anyway.

And then 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 it's that choice, why not say, sure, you get your foot in the door, prisoners in Guantanamo, and we'll use the substantive rights to work out something that's protective but practical.

Mr. Olson: Well, Justice Breyer, there are several answers to that.

You started with the proposition that there was no check and that the executive is asserting no check.

This is the interpretation of the scope of a Habeas Statute.

Congress had... has had 54 years with full awareness of the decision to change it.

Indeed, as we point out in our brief, eight months after the Eisentrager decision, a bill was introduced that would have changed that statute, H.R. 2812, which would specifically have changed the statute to deal with the Eisentrager situation, so there is a check.

Justice Ginsburg: It could have been just a clarifying, General Olson.

As you well know, the fact that a bill was introduced and not passed carries very little weight on what law that exists means.

Mr. Olson: Well, I understand that, but the bill was... came eight months after Eisentrager.

Justice Scalia: You're not using it to say what the law was.

You're using it to show that there was available, and is available, a perfectly good check upon the executive branch.

If the people think that this is unfair, if Congress thinks it's unfair, with a stroke of the pen, they can change the Habeas Statute.

Mr. Olson: That's precisely correct.

And they had a bill before them eight months after the Eisentrager decision which had... that Congress proceeded on it.

Congress has also dealt with the Habeas Statute in a variety of other ways.

It has seen fit in no way to change the decision required by this Court with respect to the statute.

You mentioned several hundred years of British history was your second point.

All of those cases, or virtually all of those same cases that have been brought up in the briefs, and the amicus briefs today, were in the briefs that were before the Eisentrager...

Justice Breyer: I grant you this.

My question has to assume that Eisentrager is ambiguous and not clearly determinative.

But then on that assumption, I'm still honestly most worried about the fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has power to do everything.

Now, that's what's worrying me because of Article III, and the other thing on the opposite side, as I said, is it's possible to tailor the substance to take care of the problems that are worrying you.

Those are my two basic points.

Mr. Olson: Well, let me get back to it again.

Those earlier cases were decided and rejected in Eisen... in the Eisentrager case.

Whether there is a check on the executive, there is a Congressional check through the power of legislation, through the power of oversight, through the power of appropriations.

There is...

Justice Scalia: Can we hold hearings to determine the problems that are bothering you?

I mean, we have to take your word for what the problems are.

We can't call witnesses and see what the real problems are, can we, in creating this new substantive rule that we are going to let the courts create.

Congress could do all that, though, couldn't it?

Mr. Olson: Congress could do all that...

Justice Scalia: If it wanted to change the Habeas Statute, it could make all sorts of refined modifications.

Mr. Olson: Yes, it could...

Justice Scalia: About issues that we know nothing whatever about, because 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.

Mr. Olson: Well, we would agree with that and we would emphasize the point that stepping across that line would be impossible to go back from with respect to prisoners in the battlefield.

In fact, the reply brief refers to the front lines in Iraq, in a battle station in Iraq.

We are talking here about battlefield decisions and...

Justice Breyer: The battlefield, I might, since... all I mean by working out the substantive rights is what Justice Harlan meant and what Justice Kennedy meant in adopting Justice Harlan's view in Verdugo.

And that really derives from the insular cases, and I don't think it's something that requires witnesses and reticulated whatever they are, tax cuts.

Unidentified Justice: [Laughter]

Mr. Olson: Well, to the extent that the Court would say, the executive, you must give a military process because the Petitioners in this case, first of all, demanded in their petition and they would have a right to raise these issues to the extent they have not backed off in this case, but they demanded in their petition, their release, unmonitored communications with counsel, cessation of interrogations, evidentiary hearings.

Justice O'Connor: Wasn't it...

Chief Justice Rehnquist: Our, our doctrine would have to be applied in the first instance by 800 different district judges, I take it.

Mr. Olson: Well, there is no question that that is exactly right.

And to the extent that what the Petitioners are seeking is to oversee the circumstances... this is the language in their brief, to oversee the circumstances of detention.

That is going to vary from case to case.

Justice Ginsburg: General Olson, I have looked at the reply brief, which is the last chance to say what they mean.

And they say we are not asking for any of those things, and certainly not asking to have a lawyer there while these people are being interrogated.

They are saying, look, we are claiming that our people are innocents.

And for purposes of this proceeding, we must assume that.

And all we want is some process to determine whether they are indeed innocent, and it doesn't have to be a court process.

Mr. Olson: But Justice Ginsburg, the relief that I was articulating is what they asked for in the first instance.

If they have jurisdiction in this Court, the next Petitioner doesn't have to say well, I only want a process.

And if they only want... now they are saying they only want an executive branch process to review.

As we explained...

Justice Ginsburg: If you go back to the jurisdiction, so I understand really what your argument is.

Would this be entirely different, as far as their jurisdiction is concerned, if we were talking about... if the people were prisoners on Ellis Island or in Puerto Rico?

Mr. Olson: Yes, we would.

Because we are talking about territorial sovereign jurisdiction of the United States.

What... what exists in Guantanamo is no different than existed in Lansberg Prison and...

Justice Souter: Why is that, why is that crucial?

I mean, it's not crucial, I take it, under the respective jurisdiction clause of 2241.

Is it crucial under the Due Process Clause?

Mr. Olson: It is, it is the line that this Court drew and repeatedly articulated...

Justice Souter: But why is it a good line?

Justice Scalia: I mean, what is... what is the justification?

Mr. Olson: Because it is a line that is, is... has the virtue of what Justice Breyer was talking about, of having relative certainty.

It is a line that's defined by State to State relationships.

Justice Ginsburg: Why does it have complete jurisdiction?

No one else has jurisdiction.

Complete jurisdiction of satisfactory lines.

Mr. Olson: Well, the complete jurisdiction is a phrase in that lease, the lease specifically says that ultimate sovereignty is Cuba's.

It specifically says that the United States...

Justice Ginsburg: How many years have we been operating in Guantanamo with Cuban law never applying?

Mr. Olson: With respect... the lease restricts the ability of the United States to use that property for only Naval or coaling purposes.

It specifically says it may not be used for any other purpose.

Justice Scalia: General Olson, there is a whole other issue in this case which you have not addressed and I don't think your brief much addressed it.

There is also a claim of jurisdiction under Section 1331 in the Administrative Procedure Act.

Will you say at least a few words about what your response to that is?

I don't even see the APA cited in your brief.

Mr. Olson: What is cited in the brief, and we explain that the President is not an agency under the APA, that the United States military with respect to operations and military operations are specifically exempted by the APA.

Justice Scalia: That goes to the merits.

Mr. Olson: And that the fundamental nature of what the Petitioners are seeking here is the review of the nature and status of their detention, which sounds in... and is examined by this Court repeatedly under the doctrine of habeas corpus.

And that there is no foundation.

In fact, I submit that the way the briefs have been written, the Petitioners don't even feel strongly about the APA position.

What they are talking about, and why most of their briefs explain, they are focusing on fundamental habeas corpus as it existed throughout the centuries.

What is important to emphasize here with respect to all of these questions, with respect to, well, how much control would there be, how much control would there be in Guantanamo versus a place in Afghanistan or another place...

Justice Ginsburg: I think Guantanamo, everyone agrees, is an animal, there is no other like it.

The closest would be the Canal Zone, I suppose.

Mr. Olson: The Canal Zone was treated differently by Congress.

Congress created, applied, under its responsibility with respect to territorial and insular or unincorporated territory, applied laws there, put a court there.

So it's very different than the Canal Zone.

Justice Ginsburg: Why isn't this like, as I asked Mr. Gibbons, a Federal enclave within a State?

Mr. Olson: Because it is... because it is a... in the first place, the question of sovereignty is a political decision.

It would be remarkable for the judiciary to start deciding where the United States is sovereign and where the United States has control...

Justice Ginsburg: The word is physical control, power.

Mr. Olson: We have that, Justice Ginsburg, in every place where we would put military detainees, in a field of combat where there are prisons in Afghanistan where we have complete control with respect to the circumstances.

Justice Souter: But those... Afghanistan is not a place where American law is, and for a century, has customarily been applied to all aspects of life.

We even protect the Cuban iguana.

We bring... in bringing people from Afghanistan or wherever they were brought to Guantanamo, we are doing in functional terms exactly what we would do if we brought them to the District of Columbia, in a functional sense, leaving aside the metaphysics of ultimate sovereignty.

If the metaphysics of ultimate sovereignty do not preclude us from doing what we have been doing for the last 100 years, why is it a bar to the exercise of judicial jurisdiction under the Habeas Statute?

Mr. Olson: The Court actually heard a case, Neely vs. Henkel, in 1901, which specifically addressed that, and held that the United States did not have sovereignty for the enforcement of its laws in Guantanamo.

And at that point...

Justice Souter: We've been doing a pretty good job of it since then, am I right?

Mr. Olson: With respect to a certain area, a military base in Germany, a military base in Afghanistan, the United States must have and does exercise relatively complete control.

Every argument that's being made here today could be made by the two million persons that were in custody at the end of World War II, and judges would have to decide the circumstances of their detention, whether there had been adequate military process, what control existed over the territory in which they were being kept.

What this is...

Justice Souter: Are you saying that there is no statutory regime that applies to Guantanamo which is different from the statutory or legal regime that applied to occupied territories after World War II or indeed that applies to territory under the control of the American military in Afghanistan or Iraq?

Mr. Olson: There is a great deal of differences in connection with every area over which the United States has some degree of control.

The degree of control that it has here is limited to specific purposes in... with respect to the sovereignty of Cuba.

Chief Justice Rehnquist: Thank you, General Olson.

The case is submitted.