Hamdi v. Rumsfeld - Oral Argument

Argument of Frank W. Dunham, Jr.

Chief Justice Rehnquist: We'll argument first this morning in number 03-6696, Yaser Esam Hamdi vs. Donald Rumsfeld.

Mr. Dunham.

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

Petitioner Hamdi is a citizen who has been held over two years in the United States with no opportunity to be heard as to the facts on which his detention is based.

Mr. Hamdi makes two claims.

First, the Fourth Circuit wrongly prevented Hamdi in this habeas proceeding from being heard as to the facts of the case on grounds that allowing him to be heard would interfere with executive power.

Second, that the Fourth Circuit erred in finding even on the one-sided record that's before this Court that his detention is authorized by law.

The historical core of habeas corpus is to challenge extrajudicial executive detention.

It cannot be a violation of the separation of powers for an Article III court to perform its judicial function of inquiry into long-term, indefinite detention of a citizen in a habeas corpus proceeding.

Quoting from INS v. St. Cyr, at its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention and it is in that context that its protections have been strongest.

Justice O'Connor: Do we have precedents for applying the writ in wartime situations to enemy combatants?

Mr. Dunham: For aliens, yes.

And in Quirin...

Justice O'Connor: But for a citizen who turns out to be an enemy combatant?

Mr. Dunham: There are two...

Justice O'Connor: What precedents do we look to?

Mr. Dunham: There are only two precedents that I'm aware of, Justice O'Connor.

The first is the treatment of the American citizen saboteur spy in Ex parte Quirin, and the other is Mr. Territo, in In re Territo, which was a Ninth Circuit case.

It is not a case coming out of this Court.

In our view, first off, in Territo, the,... he was not an enemy combatant.

He was called a prisoner of war in that case, but in Territo, there was a full hearing by the district judge.

Territo was claiming that he was not a prisoner of war, that he was forced to serve.

That he was an American citizen.

That he had a right to have it determined that he was not a voluntary combatant.

Justice O'Connor: That's not the complaint, or the allegation here, is it?

Mr. Dunham: The allegation here is that, as I understand it, is that Mr. Hamdi is an enemy combatant, whatever that means.

We don't find it defined in any case.

We don't find it defined in any statute, and it hasn't been defined by regulation or by anything that's been filed in this case.

Justice Scalia: Well, it's an English word.

It means somebody who is combatting.

Mr. Dunham: That's correct.

Justice Scalia: I assume it means someone who is... has taken up arms against the armed forces of the United States.

Isn't that... really, do we have to quibble about that word?

Mr. Dunham: No.

I mean, in its ordinary sense, Your Honor, you're absolutely right.

And that's what we would take it to mean.

We would give it...

Justice Kennedy: Well, if the Government's right, he is an unlawful belligerent, I take it, if the Government's right.

Mr. Dunham: Well, the Government hasn't claimed in this, on the record in this case, which is limited to the Mobbs Declaration, it doesn't say anywhere in the Mobbs Declaration that Mr. Hamdi is an unlawful combatant.

The Fourth Circuit in this case limited the district court's consideration to that, to that affidavit, and said he could consider nothing else.

Now, there is nothing in that declaration that says that Mr. Hamdi was an unlawful combatant.

And getting back to Justice Scalia's point, we do accord the words enemy combatant their ordinary English meaning because we have nothing else to tie ourselves to, and those words mean an enemy is... an enemy is a member of a hostile power or force.

And a combatant is one taking part in combat.

Justice O'Connor: Well, it certainly is possible that a U.S. citizen could end up fighting for the enemy in a war against our country.

That's possible.

Mr. Dunham: That's happened.

Chief Justice Rehnquist: Yes.

Justice O'Connor: Happening.

And so when that individual is captured then, by our country, the question is, to what extent does the habeas statute apply, and if it does, are the proceedings limited in some way?

Because of that status of being an enemy combatant?

Mr. Dunham: Well, Your Honor, I believe that the... his status is the thing that is the subject of the habeas proceeding.

I mean, if you start from the premise that he is fighting against our country, that's one thing.

But what we are saying here is that that fact is in dispute, and that we ought to...

Justice Scalia: But you could say the same thing about, about noncitizen combatants.

I mean, anyone captured in a war could say, you got the wrong man.

I, in fact, was not taking up arms against the United States, and I insist upon a judicial proceeding to let me make that point.

Now, you surely wouldn't allow every captured enemy in a war to go through a habeas proceeding because he wants to challenge the fact, would you?

Mr. Dunham: Your Honor...

Justice Scalia: Or would you?

Justice Breyer: I don't know.

Mr. Dunham: No.

I wouldn't allow every person captured to go through a habeas proceeding, but there is a different legal status of a U.S. citizen from an enemy alien captured on a battlefield.

They have a different status.

Justice Kennedy: Well, I'm still not clear what you do with Justice O'Connor's question and it's basically the Quirin case.

You are a citizen but you are an enemy combatant and you are captured.

Are your rights any different from that of a noncitizen in the same status?

You haven't answered that.

Mr. Dunham: Well, yes.

First off, in Quirin, we have to start with the premise that the Quirin proceeding was authorized by Congress.

They were proceeding...

Justice Kennedy: I'm asking you to distinguish between citizen and noncitizen in the hypothetical case where each are combatants against the United States and are captured.

Any difference?

Mr. Dunham: Not in the Quirin case.

No, Your Honor.

Justice Kennedy: Any difference in your view and under your theory of the case that you're presenting here?

Mr. Dunham: Yes.

Justice Kennedy: And what is that difference?

Mr. Dunham: That difference is that Mr. Hamdi is a citizen.

He is not entitled to belligerent immunity.

He is subject to prosecution under our laws if he was, in fact, participating in taking up arms against our forces.

But that begs the question.

Justice Ginsburg: You mentioned, you mentioned in connection with Quirin that there was a statute, and I think one... one of the defendants was alleged to be a U.S. citizen.

So I thought you were making what... were there regimes in prior wars for entertaining the claims of people who said, I was an innocent bystander, I was indeed captured by the enemy.

In Vietnam and World War II, were there means to entertain the claims of people who said, I wasn't an enemy?

Mr. Dunham: There were regimes then and there are regimes now, but they haven't been used by the military here.

There are outstanding military regulations that provide for a hearing for someone captured on the battlefield to determine their status if there is any doubt as to their status.

Justice Ginsburg: Would those military proceedings satisfy your claim?

Your point is that Hamdi has not had a chance to be heard on his claim that this was a dreadful mistake, I wasn't an enemy.

Mr. Dunham: Those proceedings would go a long way towards satisfying the process part of our claim, Your Honor, but they don't really address the authorization part of our claim, which we have two claims here really.

The first is that he has never been... had an opportunity to give, to assert a claim of innocence.

And those regulations, if they had been followed in this case, would certainly have given him that opportunity.

And then if he filed a habeas corpus petition which would be his right, the district judge would have had a record of a hearing like he does on a... on reviewing a state criminal conviction.

Chief Justice Rehnquist: But I don't think any proceeding, Mr. Dunham, conducted by the military at this stage, is going to reveal much that's factual.

How are you going to get people, you know, if he was seized on the battlefield, what evidence are you going to get now from the, from those people who probably don't even remember it?

If the military accorded some process at that time, as I understand they said they did, surely that is more reliable than anything that would come up now two years later.

Mr. Dunham: Your Honor, they did not provide any process as contemplated by their regulations.

In fact, the district judge offered to let the military take this man and give him one of those hearings.

The very hearings their own regulations specify.

Justice Scalia: What would you expect the military to do?

As I understand it, he wasn't even captured by our own forces.

He was captured by allied forces and turned over to our forces.

Mr. Dunham: Well, that's certainly, certainly part of the problem, Your Honor.

We have a strong...

Justice Scalia: Well, you want them to run down the members of the Afghan allies who captured this man and get them to testify in a proceeding?

It's just putting unreasonable demands upon, upon a war situation.

I just...

Mr. Dunham: Your Honor, I don't... my view is that it can never be an unreasonable demand to comply with habeas corpus and the Fifth Amendment.

Justice Souter: Are you claiming...

Justice Kennedy: That is the question...

is what it means.

And the Chief Justice and Justice Scalia both indicated and it concerns me, too.

What do you want to happen at this hearing?

You get your hearing.

Are we supposed to send a Gulfstream over with 10 people who witnessed the capture?

How does this work?

Mr. Dunham: Well, the military's own regulations provide a good guide for how this hearing would work.

They allow testimony by affidavit when it can't, when it's not convenient to obtain it in any other way.

And we are living in an age where we have... we are not living in the World War II age.

We have fax machines.

We have phones that have pictures.

You can get depositions.

Justice Scalia: What if they get a deposition from an American colonel who says this prisoner was turned over to me by allied forces, our Afghan allies in this combat, and I was assured by them that they had captured him in a firefight?

Now, is that going to satisfy our habeas corpus review?

Mr. Dunham: Your Honor, that would be a lot more than what we have now.

Justice Scalia: Oh, it certainly would, but you wouldn't accept that, would you?

Mr. Dunham: Well, I wouldn't accept it without Mr. Hamdi...

Justice Scalia: Of course you wouldn't.

Mr. Dunham: an opportunity to be heard.

Fundamental to...

Justice Souter: So your objection is not the hearsay rule, your objection is the right to make some kind of response.

That's your basic process claim?

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

That we have, we have never authorized detention of a citizen in this country without giving him an opportunity to be heard, to say, hey, I am an innocent person.

We don't... he hasn't even been able to say that yet.

He hasn't been able to look at the facts that have been alleged against him and give any kind of an explanation as to his side of the story, which may well turn out to be true and may well clear up some of the deficiencies in the Mobbs Declaration.

Justice Souter: But if this... I'm sorry.

Go on.

At this stage of the game, I take it, you have no per se objection to some form of military process, so long as he could be heard?

Mr. Dunham: The only problem I would have with that, Your Honor, and it's a small one, is that the military has refused to give this process to him.

Justice Souter: Well, I realize that.

But that's what you're... you're asking us for something.

And my suggestion is, if I understand your argument, that if ultimately you were found, your client was found to be entitled to some process, it might be, consistently with your position, that military process with an opportunity to be heard in response would satisfy your demand.

Mr. Dunham: Yes.

That's correct, Your Honor.

Justice Souter: All right.

Mr. Dunham: The military procedure requires the military to call witnesses and allows the detainee an opportunity to give his own side of the story and call his own witnesses.

Justice Kennedy: Do you still think that habeas is necessary in order to determine that that process has been afforded him?

Mr. Dunham: Well, right now, habeas is necessary to even get him that process.

Justice Kennedy: Let's assume the regime that Justice Souter suggested, it's in place.

You are entitled to habeas in order to ensure that that has taken place and have, have the Article III court supervise that, or would affidavits that this, from the Government that this procedure has been afforded be satisfactory?

Mr. Dunham: That would be a separate habeas proceeding, Your Honor, which might be filed after the hearing was held by the military, and...

Justice Kennedy: I'm asking if you are entitled to file that as a matter of right.

Mr. Dunham: I believe that any U.S. citizen has a right to file a habeas corpus petition at any time he is detained by the government.

But I don't know that the Article III court would need to supervise the military hearing if that's what he got.

He would certainly have the right, when that hearing was over, just like anybody does, to file a habeas petition saying that I'm detained by the government.

And then the district judge could look at the hearing, if there was a hearing by the military, he could review it for fundamental fairness, if that's what the detainee decided to do at that point.

But it wouldn't be...

Justice Scalia: But it is reviewable on habeas?

You are not saying that it would be an adequate defense in a subsequent habeas position simply to say there was a hearing of the kind prescribed in the military regulations, and after that hearing, he was found to be an enemy combatant.

That would not satisfy you?

You would allow the habeas court to re-examine the facts brought up in that hearing?

Mr. Dunham: I believe that the habeas court could always review the process to see that it was fair.

That's a habeas court's function.

Justice Scalia: Right.

Mr. Dunham: But it wouldn't be anything extensive.

If there was a record from the military proceeding, the district judge would simply...

Justice Scalia: Well, it depends on what you mean by fair, of course, and what, you know, what common law courts usually mean by fair, for example, is no hearsay testimony.

And you apply that rule to a wartime situation and everybody will get off.

Mr. Dunham: Well, Your Honor, the regulations, the military's own regulations say how the hearing is to be held.

The district judge would be basically looking to see whether those regulations were complied with.

Justice Scalia: Oh, that's different.

I thought you said that he would look to see whether those regulations were fair.

Mr. Dunham: Oh, no, not the regulation... whether the proceeding was fair, whether it complied with due process.

And that would...

Justice Scalia: That's something quite different from saying they followed the regulations.

The regulations might be something that a common law judge thinks does not comply with due process.

In that case, you would override the military judgment, right?

Mr. Dunham: Well, I believe the district court has that power, Your Honor.

The Article III court has that power in a habeas proceeding.

Justice Breyer: But I didn't understand your basic answer.

The basic question is, in the ordinary case, not some unusual case, but in the ordinary case, if they set up an ordinary military tribunal according to Article I(6) and it worked and so forth, then isn't that due process?

I thought Justice Scalia... in response to Justice Scalia's questions, you said that wouldn't satisfy you, but my impression was you were saying in the ordinary case, that would satisfy you.

Mr. Dunham: That's correct.

Justice Breyer: All right, it would satisfy you.

Justice Scalia: Fine.

Mr. Dunham: All I wanted to say was that you haven't had that hearing.

Justice Breyer: No, I understand that.

That's the second half of my question.

They could satisfy you, I take it, in one of two ways.

A, that they have the military tribunal that they've given in every war or so forth, the ordinary procedure there, a neutral decision maker and an opportunity to present proofs and arguments, or B, they don't do that.

Now, if they refuse to do that, then what, in your opinion, should the habeas court do?

Mr. Dunham: Then the habeas court should hold a hearing that would be very similar to what the military should have done.

Judge Doumar here tried to send the case back to the military to have them hold the very hearing we're talking about, using their own officers to do it just as the military regulations require it.

Justice Souter: But that would be a different approach.

I mean, it might be not that the habeas court has to hold the hearing that the military would have held, but that the habeas court has to say to the military, hold the hearing or let him go.

You would be satisfied, I take it, if the habeas court, on Justice Breyer's hypothesis, said, hold the hearing.

Mr. Dunham: That would be satisfactory, Your Honor, but the question is what interferes with the military more, for the district judge to hold a hearing that the military has previously refused to do, or to order the military to follow their own rules?

Justice Ginsburg: Was there a reason given... when the district judge suggested that solution, why did the Government say, we don't want to use the procedure that we used, say, in Vietnam?

Mr. Dunham: As I recall, the answer was we're not required to and we don't choose to do so.

Justice Ginsburg: Is that procedure... does that have... did Congress have a part in that, the military regulations that provided for how you treat people in wartime situations who say, I'm innocent essentially?

Mr. Dunham: No, Congress has not passed these rules.

Justice O'Connor: Well, Congress did pass something called the authorization for use of military force, did it not?

Mr. Dunham: Yes, it did, Your Honor.

Justice O'Connor: And it affects this very conflict.

Mr. Dunham: Yes, it does, Your Honor.

Justice O'Connor: Now, what application does that have here?

It appears to allow detention of people captured.

Mr. Dunham: The authorization for use of military force does not have the word detention anywhere in it.

It talks about use of force and it is the equivalent, in our view, of a declaration of war.

Although it is not a formal declaration of war, it would have that same operative effect.

And in our history, we have never had any substantive rights conveyed to the commander-in-chief by the mere act of a declaration of war.

Justice Scalia: Inherently, I mean, certainly, you know, when there is a declaration of war or a resolution such as this, surely the President has the right to kill foreign combatants, no?

Mr. Dunham: He certainly has the right to kill them and if they're aliens...

Justice Scalia: Now, is it conceivable that he has to kill them but not to detain them?

Mr. Dunham: He has the right to detain alien combatants, no question about it.

But when it comes to U.S. citizens, you don't simply detain them.

You prosecute them, like they did with John Walker Lindh.

Justice Kennedy: You're saying that AMUF is insufficient in this case to detain, because declarations of war and the AMUF historically have simply authorized the President to use his judgment and his force and his capacities and his power without having an extensive list of the different things that he can do.

And you're asking for something quite different, it seems to me.

Mr. Dunham: Well, in the War of 1812, there was a general declaration of war but Congress still passed a list of specific things the President could do.

Obviously a declaration of war doesn't give the President the power to appropriate funds to fight the war.

Justice O'Connor: No, but look, it does say in this authorization, the President is authorized to use all necessary and appropriate force against persons he determines planned, authorized, committed or aided the terrorist attacks.

Mr. Dunham: If that is interpreted to mean that he can impose indefinite executive detention on anybody that he thinks is necessary in order to fulfill that command, we could have people locked up all over the country tomorrow without any due process, without any opportunity to be heard, because we know that this war that we're talking about here is going on worldwide and it's going on within our own borders.

Congress didn't intend to... when it passed this authorization for use of military force to authorize widespread detentions of people with no opportunity to be heard, indefinite, solitary confinement for as long as they might live.

Congress... there is no indication that Congress intended any such thing.

Justice Kennedy: Did Congress intend that the President has the authority and the right to use whatever powers are necessary to suppress the terrorists and to prevent future attacks, consistent with the traditions and the powers of that office?

Mr. Dunham: I believe they authorize it consistent with our laws.

I don't think Congress repealed any laws when they wrote the authorization for use of military force.

Justice Stevens: Mr. Dunham, can I ask you sort of a preliminary question.

We're talking about way down the road now, but do you contest any of the facts in the Mobbs Declaration?

Mr. Dunham: Well, I've only recently been allowed to talk to my client, Your Honor, and everything he has told me they tell me is classified, so I'm not allowed to convey it to the Court this morning.

But the best I can say is in an overall general way, there is a substantial dispute.

Justice Stevens: There is a substantial dispute, and have you had an opportunity, on behalf of the client, to supplement or to contradict or supplement the information in the Mobbs Declaration?

Mr. Dunham: No, because it's... it's while the matter has been pending before this Court and there is no way to go before the Court at this point, absent a remand, in order to do that.

If the Court remanded, I would be able to do that provided that we had appropriate protective orders in place so that I could convey classified information to the Court.

Justice Ginsburg: Mr. Dunham, one of the judges on the Fourth Circuit in the en banc denial, Judge Mock, had a proposal that was similar to the one that Judge Mukasey proposed in New York.

And that is, initially, the Mobbs affidavit is taken as true but that you have an opportunity to rebut it.

Would that be a satisfactory... would that comport with due process in your view?

Mr. Dunham: Your Honor, that is the way the statutory habeas proceeding is supposed to unfold.

The Government doesn't deny that we have a right to have a habeas proceeding.

They've conceded it at three different points in their brief.

So once we're before the court on a petition for habeas corpus, the question is what does that proceeding look like.

And I suggest it's spelled out in the U.S. code.

When Congress passed the authorization for use of military force, it did not say we suspend habeas.

Habeas corpus statutes are still on the books and exactly what Your Honor is talking about is what should happen.

Justice Scalia: So every United States citizen, even if they're captured on the field of combat, is entitled to a habeas hearing?

Mr. Dunham: That of course assumes he's captured on the field of combat, Your Honor, which we don't concede.

Justice Scalia: Well, that's right.

He's entitled to a habeas hearing to determine whether in fact he was captured on the field of combat opposing the United States, right?

Mr. Dunham: Well, if he files a petition for habeas corpus, yes.

Justice Scalia: And I presume that anybody who claims to be an American citizen would be entitled to a habeas hearing on the question of whether he is in fact an American citizen, and then the subsequent question of whether he was captured on the field of combat while taking up arms against the United States, right?

Mr. Dunham: Well, the military...

Justice Scalia: So every foreigner captured, if he claims to be an American citizen, would be entitled to the kind of habeas hearing you're talking about?

Mr. Dunham: Not necessarily on a mere claim, Your Honor.

The military is required to take a long list of biographical data from anybody they capture.

And in this particular case, there is no dispute about the man's citizenship.

There is a birth certificate in the record.

The military has not... they're the ones that determined he was a citizen.

Justice Scalia: I'm not talking about this case.

I'm talking about the principle that you're asking us to adopt and how it would apply.

I mean, if there is a habeas corpus right for an American citizen, there has to be, it seems to me, a habeas corpus right for everyone who claims he is an American citizen.

Mr. Dunham: Your Honor, that may be the case but that doesn't justify taking away the habeas corpus right from a citizen.

That is a right that has been there since this country was founded and it doesn't justify taking away a citizen's right because some sham claim might be made.

Justice Scalia: Whether it's been there since the country was founded when he was captured on the field of battle is the very controverted question that's up here.

You can't say that with that assurance.

I mean, that's why we have a case here.

Mr. Dunham: If it please the Court, I would like to save the balance of my time for rebuttal.

Argument of Paul D. Clement

Chief Justice Rehnquist: Very well, Mr. Dunham.

Mr. Clement, we'll hear from you.

Mr. Clement: Mr. Chief Justice and may it please the Court:

Petitioners contend that the Government categorically lacks the authority to hold Hamdi as an enemy combatant.

But it has been well established and long established that the Government has the authority to hold both unlawful enemy combatants and lawful prisoners of war captured on the battlefield in order to prevent them from returning to the battle.

Over 10,000 United States troops remain on the field of battle in Afghanistan.

No principle of law or logic requires the United States to release an individual from detention so that he can rejoin the battle against the United States.

Justice Ginsburg: But the question of whether it's a criminal procedure or this detention without... does the Government have any rhyme or rationale as to why some of these people... I think Mr. Dunham mentioned Lindh, there is also Moussaoui, there is this John... they are also being kept away from returning any place because there are criminal charges against them.

And then there is Hamdi and Padilla and Almorai who are in this detention state with no charges.

What does the Government... how does the Government justify some going through the criminal process and others just being held indefinitely?

Mr. Clement: Justice Ginsburg, I think that reflects the sound exercise of prosecutorial and executive discretion.

There are some individuals who may be captured in a situation where they did not have any particular intelligence value, they have been handled in a way where there are no difficult evidentiary questions that would be raised in a criminal prosecution and those individuals can be dealt with in the Article III system.

But there are plenty of individuals who either have a paramount intelligence value that putting them into the Article III system immediately and providing them with counsel whose first advice would certainly be to not talk to the Government is a counterproductive way to proceed in these cases.

Justice Kennedy: At the moment, nobody...

I'm trying to find whether there is any literature or commentary on how long the detention is required before the intelligence value, the interrogation value of the custody serves no further purpose.

Can you give me any ideas of the outer bounds of how long the detention would take in order to get the value from the interrogation that you want?

Mr. Clement: Well, Justice Kennedy, I'm not sure I can give you the outer bounds, but what I can say is that the case here before you today in Hamdi, and the case in Padilla, suggests that the amount of time that is necessary to allow for interrogation without access to counsel in order to get intelligence is not an indefinite period of time.

Both these individuals now have access to counsel because the military intelligence experts who make these judgments have made the judgment that access to counsel at this point does not interfere with the intelligence gathering process.

Justice Kennedy: Would it be...

Justice Stevens: Mr. Clement, how can you assume...

Justice Kennedy: Would it be a helpful line of inquiry for a district court, assuming that there is some jurisdiction in the district court, which you would contest, to have testimony as to how effective interrogations are and how long it takes.

And then we could begin to get some understanding of this process?

Mr. Clement: I suppose you could.

One thing I would point you to, Justice Kennedy, is the declaration of Vice Admiral Jacoby, who is the director of the Defense Intelligence Agency.

That's at page 75 of the Joint Appendix in the Padilla case.

And I think that... there obviously are various ways the courts could approach this.

A court in one proceeding could take evidence of the question generally.

I suppose if there were a situation in which there was a habeas petition filed and there was an initial period where there was no access to counsel, if a judge for some reason thought that that had taken too long, I suppose that judge could make an inquiry of the Government, and in an ex parte proceeding, they could make some kind of filing explaining to the judge why it is that further interrogation without counsel is necessary.

I think the important thing is twofold.

One, to recognize that there is a unique interest, especially in the course of this conflict, where intelligence is at unprecedented value, to have some ability with some detainees to deal with them in a way that allows us to get intelligence to prevent future terrorist attacks, and not be limited just to going after them retrospectively for past terrorist attacks.

Justice Souter: We can accept that, but what do you, what do you make of Section 4001.

I take it it's the Government's position that it has absolutely no application to the situation.

That it simply refers to the normal circumstances of the criminal law.

Justice Kennedy: Is that right?

Mr. Clement: That's right, Justice Souter, but I would be quick to add that we... I mean, all 4001(a) says is that an individual must be detained pursuant to an act of Congress.

Rebuttal of Frank W. Dunham, Jr.

Chief Justice Rehnquist: Right.

Mr. Dunham: If one needs an act of Congress, and we question whether this really has anything to do with the detention of enemy combatants by the military, but to the extent an act of Congress is necessary, as I think Justice O'Connor's questions indicated, the authorization of force provides more than ample statutory...

Justice Souter: It certainly did... may I just ask one more question?

I will concede certainly at least for the sake of argument that it did in the, in the early stages of the period starting with September 11th.

I will assume for the sake of argument that it did when it was passed.

It doesn't follow, however, that it is adequate for all time.

The fact is, I will assume that on September 12th, without any authorization from Congress at all, the President could have taken action in relation to this individual, I mean, if he had been fighting on a battlefield that the President took.

But it doesn't follow that the President's authority to do that is indefinite for all time.

And I guess the question I would be interested in and your response to is this.

Is it reasonable to think that the, that the authorization was sufficient at the time that it was passed, but that at some point, it is a Congressional responsibility, and ultimately a constitutional right on this person's part, for Congress to assess the situation and either pass a more specific continuing authorization or at least to come up with the conclusion that its prior authorization was good enough.

Doesn't Congress at some point have a responsibility to do more than pass that resolution?

Rebuttal of Paul D. Clement

Mr. Clement: Well, Justice Souter, I would say a couple of things.

One is there may be some difficult questions down the road, but if there is emphasis that 10,000 United States troops remain on the battlefield in Afghanistan...

Justice Souter: Well, there are 10,000 troops there, but it's two and a half years later.

And it may very well be that the, that the constitutional obligation and the constitutional demand that his client can make is that the political branch take a... make a further assessment and a more specific one.

I'm not denying that there is a lot going on, but there has also been time.

Mr. Clement: I realize that, Justice Souter.

Let me say one other thing.

And then if I have time, I'd come back to the 10,000 troops still on the ground.

What I would say is Congress has been open with whatever appropriate recesses every day since September 18th, 2001 when they passed the joint resolution.

If they were to pass some specific statute that either provided for more finely reticulated procedures for dealing with enemy combatants or tried to preclude the detention of certain individuals, then I think one of two things would happen, either the executive branch would follow those more reticulated provisions, or I suppose if there was a judgment by Congress that this authority was denied all together and the President thought that that authority was absolutely necessary to the fighting of the battle in Afghanistan, then you might have a situation where we came to this Court in a situation that Justice Jackson would say the executive's power is at its lowest ebb.

But here we come to the Court with that authorization that the President relied on.

Justice Souter: You come with an authorization that the President relied on and which I will assume he quite rightly relied on at the time it was passed.

But my question is a timing question.

Is it not reasonable to at least consider whether that resolution needs, at this point, to be supplemented and made more specific to authorize what you are doing?

Mr. Clement: Well, again, Justice Souter, I can't imagine that the rule is that the executive somehow suffers if Congress doesn't fill the breach.

Because the last word from Congress is that... that all necessary and appropriate force is authorized.

Justice Souter: Yes, but when you say the executive, I think your response is assuming that the executive has the power.

And it may very well be that the executive has power in the early exigencies of an emergency.

But that at some point in the indefinite future, the other political branch has got to act if that, if power is to continue.

Mr. Clement: But Justice Souter, they have authorized the use of force.

They recognize, if you took...

Justice Souter: Without any specific reference to this situation, without any specific reference to keeping American citizens detained indefinitely.

Justice Scalia: I mean, that's the problem.

Mr. Clement, this Section 4001 doesn't relate to a hearing, it relates to the President's power to detain, doesn't it?

Mr. Clement: Well, absolutely.

Justice Scalia: So if it expires after two and a half years, it would just not mean you have to give them counsel after two and a half years or give them a hearing after two and a half years.

It means you would have to let them go back to Afghanistan after two and a half years, wouldn't it?

Mr. Clement: It would, Justice Scalia...

Justice Scalia: It would, but it uses...

Mr. Clement: And that's why I find it so remarkable that we have to confront this question when our troops are still on the ground in Afghanistan.

Justice Breyer: Wait.

You're also... the words are necessary and appropriate.

And also the words in the Constitution are due process of law.

And also the words in the Magna Carta were according to law.

And whatever form of words in any of those documents there are, it seemed to refer to one basic idea that's minimum.

That a person who contests something of importance is entitled to a neutral decision maker and an opportunity to present proofs and arguments.

You have heard, in the last hour, people talking about the military itself recognizing that basic principle with tribunals in what is called Army Reg 190.8.

Now, is there any reason why, when a person says I am not a combatant, I was a relief worker, I wasn't even there, I was sold into this by people who wanted a bounty, is there any reason why you could not have that kind of proceeding, the kind of proceeding that was given in the Gulf War on the battlefield in hundreds of instances, that was given in Iraq in hundreds of instances, the kind of proceeding that the military itself has given over and over and over.

Now, is there any reason why that isn't necessary and appropriate, or why that isn't in accordance with law or due process of law?

Mr. Clement: Justice Breyer, let me say several things.

One is that the regulations that are being bandied about are the regulations that the Army uses to comply with their obligations under Article V of the Geneva Convention.

Now, Article V of the Geneva Convention does not apply here, and let me address why in a minute, but let me say very clearly that these individuals have gotten military process.

It might not have been the exact process...

Justice Breyer: Wasn't the question I asked.

The question I asked, is there any reason why the Army itself could not give a comparable basic proceeding where you have a neutral decision maker, and a practical, but fair opportunity to present proofs and arguments?

Not some kind of thing on the battlefield, something two years later, not some kind of thing where you haul in witnesses, but something that's practical insofar as you get evidence that's reasonably available.

Mr. Clement: Well, Justice Breyer...

Justice Breyer: I want a practical answer.

Justice Souter: I don't want a... yes.

Mr. Clement: I understand that.

But the practical answer that you are looking for assumes a process that's never been provided.

There has never been a process that's removed from the battlefield.

What Article V provides and what the military regulations provide is immediately adjunct to the battlefield, you have three military officers who do a very quick hearing, the purpose of which primarily is to figure out not whether somebody is completely innocent, but to figure out whether they are properly classified as a prisoner of war, as opposed to an unlawful enemy combatant.

Justice O'Connor: So you say the regulations in place provide for that battlefield type review?

Mr. Clement: They do, Justice O'Connor...

Justice O'Connor: Did this Petitioner have that type of review?

Mr. Clement: This Petitioner, Justice O'Connor, did not get that precise type of review, and the reason is because, based on a Presidential determination, the military officers understood that Article V of the Geneva Convention has no application here.

Again, that provision, and I think it's worth...

Justice O'Connor: Well, perhaps not, but we are here on habeas.

Do you agree that, that he is entitled to bring a habeas action?

Mr. Clement: We do agree that he is entitled to bring a...

Justice O'Connor: Okay.

Mr. Clement: habeas action.

Justice O'Connor: So then we have to decide then to what is he entitled, and even that minimal review by the military, you think, is not required?

Mr. Clement: Well, I don't think it's required, especially in a situation like this, where although Hamdi did not receive an Article V hearing because it was inapplicable, he did receive military process.

When he was originally turned over to the United States forces by the Northern Alliance, our military allies, there was a screening process on the ground in Afghanistan.

Now, that process screened out 10,000 individuals out of U.S. custody.

So he received that process.

Now, to be sure, it's a military process, but it is the kind of process that prisoners of war and enemy combatants have always gotten.

Now, because of the nature of this war, Hamdi got additional process.

And it's important to point out that this Article V process that other prisoners of war traditionally get is a one-shot deal.

It's done off the battlefield and that's it.

You are under detention for the remainder of the battle.

And there's no reason for Congress to have to go in with a new resolution.

You are there for the remainder of the war.

Now, in this context, because we recognize that there are some unusual aspects of this war, and also because the United States military has no interest in detaining any individual who is not an enemy combatant or who does not present a continuing threat, when Hamdi got to Guantanamo, he was given additional screening processes.

That screened him in as well.

Did not screen him out.

Then it may not seem what you think of as traditional due process in an Article III sense, but the interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake.

And as the affidavit that's in the record here shows...

Justice O'Connor: Do you say he had that opportunity?

Mr. Clement: Absolutely, Justice O'Connor.

And the affidavit that's filed here represents, by Mr. Mobbs, that the interrogation process, in that process, his story confirmed that he was on the battlefield and surrendered with the Taliban military unit while armed.

Justice Kennedy: Do you concede that you have the obligation to make the representation that you have just made to the habeas court?

Mr. Clement: Justice Kennedy, I'm not positive what the ultimate minimum that the habeas statutes would require in this context, but we do think that an appropriate balance of individual rights, the traditional role of habeas, that the overwhelming military imperatives of this situation are that the habeas corpus writ is available, first to make legal challenges to the detention along the lines of 4001(a) categorically precludes this, and those challenges have been open.

We also think it appropriate for the United States to come in with a declaration that explains the basis for the military's decision.

And particularly, I think what it does is it provides an explanation that if believed, provides a basis for a court to police the line that separates Quirin on the one hand from Milligan on the other.

And obviously, a situation like this with a battlefield detainee who surrendered while armed on the battlefield is a classic case of an enemy combatant.

Justice Scalia: Is there any...

Justice Ginsburg: In Quirin, in Quirin, the defendants were heard, and that's... the Mobbs affidavit is, I take it your position is, yes, habeas, and yes, the Government has to come forward with something.

And the something they came forward with is the Mobbs affidavit, which is hearsay, because Mobbs doesn't know what happened on the battlefield either.

And that there is no statement at any point from Hamdi, although the claim before us is that he would dispute what's in the Mobbs affidavit, but he doesn't have an opportunity to do that.

Mr. Clement: Well, Justice Ginsburg, I mean, there actually is, I mean, it would be something like double hearsay, but there is a statement in the Mobbs declaration itself where Mobbs is summarizing that Hamdi himself...

Justice Ginsburg: Yes, but that certainly is double hearsay.

Mr. Clement: It certainly is, but this is...

Justice Ginsburg: The person who is locked up, doesn't he have a right to bring before some tribunal himself his own words, rather than have a Government agent say what was told to him that somebody else said.

Mr. Clement: With respect, Justice Ginsburg, he has an opportunity to explain it in his own words.

Now, it may not...

Justice Souter: During interrogation?

Mr. Clement: During interrogation.

Justice Breyer: I mean, is that your point?

Mr. Clement: During interrogation.

During the initial screening.

During the screening in Guantanamo.

Justice O'Connor: How about to a neutral decision maker of some kind, perhaps in the military?

Is that so extreme that it should not be required?

Mr. Clement: No, Justice O'Connor.

And let me say two things.

One is when the initial screening criteria are applied in the field, for all intents and purposes, that is a neutral decision maker.

I mean, as I said before, the Army is not interested in holding people as enemy combatants that don't qualify for that and don't pose a threat.

The second thing I would say, though, is that as I understand it, the plan on a going-forward basis reflecting the unique situation of this battle is to provide individuals like Hamdi, like Padilla, with the equivalent of the annual review process that's laid out in the briefs...

Justice O'Connor: Well, let's talk about that for just a moment.

What is it that the Government is saying will be provided?

Mr. Clement: Well, Justice O'Connor, those regulations are still in draft form.

Justice O'Connor: So we don't know?

Mr. Clement: We don't know for sure.

I think what's envisioned is an opportunity to go before a neutral tribunal, some opportunity to present...

Justice Stevens: Yes, but Mr. Clement, you're assuming he has no right to counsel, aren't you?

Mr. Clement: Justice Stevens, what we're assuming is that he has no right to counsel that is automatic and as of right...

Justice Stevens: If he could get his own counsel, would he be entitled to consult with his counsel during the preliminary stages of his detention?

Mr. Clement: Not at the preliminary stages if the Government has made a determination that access to counsel would interfere with the intelligence gathering process.

Justice Stevens: Are there any cases... it sounds from your argument that the principle interests that the Government wants to advance is the ability to interrogate the person for a sufficient length of time to determine whether they get valuable information out of them or not.

And to deny him counsel during that period, because he may not be as willing to talk.

Now, it seems to me there are two things about that I wanted to ask you about.

One, have you considered the possibility that perhaps a lawyer would have explained to this man that if you do give some information, you won't have to stay here incommunicado for two or three years?

That might be a motivation to talk.

That's one possibility.

And the second thing I want to ask you about, are there any cases in the international field or the law anywhere, explaining that the interest in detaining a person incommunicado for a long period of time for the purpose of obtaining information from them is a legitimate justification?

I understand for arresting on the battlefield, that's perfectly clear.

But is this prolonged detention for that purpose the subject of judicial writing anywhere that you know about?

Mr. Clement: Let me answer both parts of your question, Justice Stevens.

Certainly it has occurred to us and we have considered the possibility that in some circumstances with some individuals, the best way to get them to cooperate and provide information is to give them a lawyer who will tell them, boy, you know, it's in your best interest to plead to this relatively minor material support charge or whatever and provide the Government with everything that you have.

And that is part of the answer to Justice Ginsburg's earlier question, is why is it that there is this pattern that you look at and some people are used in the Article III system and other people are prosecuted or dealt with in preventative detention in the military system.

And it reflects a judgment by people whose job it is to make these judgments that certain people, the best way to get them to cooperate, or maybe with certain individuals after you've gotten a certain amount of information from them, but you feel there is one other area you're not going to get unless the dynamic fundamentally changes, those people may be best dealt with in the way that you envisioned.

Whereas other individuals, the only way that the judgment of the intelligence experts had to deal with them is to provide them without counsel and to use an interrogation.

I think to your second point of the question, I don't know that there are any authorities that I'm aware of that address exactly what you're talking about, but I think there are two types of authority that we would point to as being very important.

First of all, it's long been recognized that one of the major justifications for the detention of enemy combatants or prisoners of war is to gather intelligence.

And we cite some sources to that effect in the brief.

The second thing, and I think this is important, is that it has never been the case that prisoners of war are entitled to counsel to challenge their capture or their detention.

What has happened historically, and what the Geneva Convention provides, is that if one of those enemy combatants is charged with a specific war crime, then at that point they're entitled to counsel.

But if they are just being held in a preventative detention, then in that circumstance, they are not entitled to counsel.

Justice O'Connor: But have we ever had a situation like this where presumably this status... war-like status could last for 25 years, 50 years, whatever it is.

Mr. Clement: A couple of responses, Justice O'Connor.

First of all, in the midst of any war, the detention may seem like it's indefinite because if you talk about a detainee in 1942, they're not going to know how long World War II is going to last.

And their detention may seem indefinite but those detentions have always been approved under the law of war.

Second, with respect to Al Qaeda and individuals who are hard core Al Qaeda operatives, the end of the war is a very difficult thing to perceive.

But with respect to somebody who is captured on the battlefield with the Taliban, this war may eventually... the executive may make the judgment or Congress may help us make the judgment that the war in Afghanistan is effectively over.

And individuals who only really posed a danger of rejoining the battle in Afghanistan would be released.

Now, there may be a few individuals who, as I say, are hard core Al Qaeda operatives and they're going to join the battle against the United States wherever it's waged.

They're just in Afghanistan because that's where the action is.

Justice Stevens: May I ask just one other question, I think it's just relevant.

But do you think there is anything in the law that curtails the method of interrogation that may be employed?

Mr. Clement: Well, I think there is, Justice Stevens.

I mean...

Justice Kennedy: And what is that?

Mr. Clement: Well, just to give one example, I think that the United States is signatory to conventions that prohibit torture and that sort of thing.

And the United States is going to honor its treaty obligations.

The other thing that's worth mentioning of course...

Justice Ginsburg: But you said something about self-executing.

In connection with the Geneva Convention, you said, well, it's not self-executing.

Would you say the same thing about the torture convention?

Mr. Clement: Justice Ginsburg, I actually have the sense that the torture victims... you have the Torture Victim Protection Act, of course, which I think doesn't actually apply to the United States.

So I'm not sure that there would be any other basis for bringing a private cause of action against the United States.

But as this Court noted in footnote 14 of the Eisentrager opinion, the idea that a treaty is going to be enforced through means other than a private cause of action doesn't mean that it's not a binding treaty, doesn't mean that it's not going to constrain the actions of the executive branch.

Just to finish up my answer to Justice Stevens' question, I wouldn't want there to be any misunderstanding about this.

It's also the judgment of those involved in this process that the last thing you want to do is torture somebody or try to do something along those lines.

I mean, if there were an artificial... if you did that, you might get information more quickly, but you would really wonder about the reliability of the information you were getting.

So the judgment of the people who do this as their responsibility is that the way you would get the best information from individuals is that you interrogate them, you try to develop a relationship of trust.

Justice Breyer: But doesn't the Court have some business intervening at some point, if it's the Hundred Years War or something?

Mr. Clement: Well, Justice Breyer, I mean, there may be a point where, depending on the nature of the war... I mean, I'm not quite sure what you have in mind that they would intervene on.

Justice Breyer: At some point, if you're holding people without a lawyer, with the only neutral decision maker being an interrogator, with no opportunity to present proofs and evidence, with no opportunity to hear the other side, in your opinion, if that goes on and on, let's say it's the Hundred Years War, is there no opportunity for a court, in your view, to say that this violates, for an American citizen, the elementary due process that the Constitution guarantees?

Mr. Clement: Well, as I indicated earlier, Justice Breyer, the courts remain open.

We recognize the viability of the writ of habeas corpus.

There certainly is a challenge that can be brought to the length of the detention at some point.

And the courts would be open to hear claims...

Justice Souter: But your answer to Justice O'Connor, I thought, was, we don't have to worry or a court should not be worrying about the indefiniteness of the time because it may well be that the President or Congress will at some point say the war in Afghanistan is no longer a matter of concern and, therefore, we don't have to hold the Hamdis.

I think that's the only answer that you have given so far to Justice Breyer's question and Justice O'Connor's question.

Justice Scalia: Am I wrong?

Mr. Clement: Justice Souter, a couple of points.

One is, I don't think there is any contradiction with that and my answer to Justice Breyer's question.

I mean, you can imagine a situation where the evidence in the Government's own affidavit shows that somebody is only detained with regard to war in Afghanistan.

And then you can imagine that that has been signed, sealed and delivered, it's over, the President says so, Congress says so and there is an effort to continue to detain that individual.

Justice Souter: I can imagine it and I can also imagine that the concern about Afghanistan will go on as long as there is concern about Al Qaeda, and there is no endpoint that we can see at this point to that.

So that it seems to me your answer boils down to saying, don't worry about the timing question, we'll tell you when it's over.

Mr. Clement: With respect, Justice Souter, I continue to think that there may be a role for the courts in dealing with the timing question at some point.

I think that would be...

Justice Kennedy: I'm taking away from the argument the impression, and please correct me if I'm wrong, that you think there is a continuing role for the courts to examine the reasonableness of the period of detention.

Mr. Clement: Well, I wouldn't take that away, Justice Kennedy.

What I'm saying is there is a continuing but modest role for the courts.

The habeas courts will remain open.

I mean, the import of one of Justice Souter's questions is that it's already too long and if somebody raised that claim, if there is another petition filed, a direct petition now that Hamdi has counsel that's filed in this claim, and that claim is raised, we would be in court vehemently saying there is no role for the habeas court there.

There are troops still on the ground in Afghanistan.

It makes no sense whatsoever to release an individual detained as an enemy combatant in Afghanistan while the troops are still on the ground in Afghanistan.

Justice Souter: But it may make every bit of sense to have an opportunity on the part of that individual, before someone other than an interrogator, to say, I am not the kind of person that they claim I am on the basis of which they are holding me.

Mr. Clement: Well, again...

Justice Souter: The alternative is not give him some kind of a hearing or release him.

Mr. Clement: No, but the alternative is to provide a means of allowing for a military process to go forward.

It's not just the interrogator.

It's the original screening team on the ground in Afghanistan that, as I said before, released 10,000 individuals out of U.S. custody.

It's the screening team in Guantanamo and then it is this annual review process that will go forward.

Now that is a tremendous amount of process that the executive branch is providing.

Justice Ginsburg: That we don't have yet.

It's still on the drawing board, the annual review.

Mr. Clement: That's quite correct, Justice Ginsburg, but I would say that for the time being, everything provided to date is more than sufficient.

Rebuttal of Frank W. Dunham, Jr.

Chief Justice Rehnquist: Thank you, Mr. Clement.

Mr. Dunham, you have four minutes remaining.

Mr. Dunham: May it please the Court.

Mr. Clement is a worthy advocate and he can stand up here and make the unreasonable sound reasonable.

But when you take his argument at core, it is,.

nd who is saying trust us?

The executive branch.

And why do we have the great writ?

We have the great writ because we didn't trust the executive branch when we founded this Government.

That's why the Government is saying trust us is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that no man shall be deprived of liberty except upon due process of law.

We have a small problem here.

One citizen.

We're not talking about thousands.

One citizen caught up in a problem in Afghanistan.

Is it better to give him rights or is it better to start a new dawn of saying there are circumstances where you can't file a writ of habeas corpus and there are circumstances where you can't get due process.

I think not.

I would urge the Court not to go down that road.

I would urge the Court to find that citizens can only be detained by law.

And here there is no law.

If there is any law at all, it is the executive's own secret definition of whatever enemy combatant is.

And don't fool yourselves into thinking that that means somebody coming off a battlefield because they've used it in Chicago, they've used it in New York and they've used it in Indiana.

The Congress needs to act here.

Justice Souter was on point when he was talking about the fact that we're two years into this thing and Congress leaves all the laws on the books that relate to habeas corpus and how a habeas corpus proceeding is supposed to go.

They leave the 4001(a) on the books that says no executive detention.

But we ignore those laws, we don't enforce them.

We don't require Congress to fill a gap.

Congress tomorrow could take these military regs and they could say, this is the law, we authorize the executive to detain people and to give them hearings the way the military says, and then it would be lawful.

But Congress hasn't done that and I respectfully submit, Your Honor, that until Congress does that, these detentions are not lawful.

And I would respectfully ask this Court to step up to the plate and say so.

Chief Justice Rehnquist: Thank you, Mr. Dunham.

The case is submitted.