Transcript

BAILIFF: The Honorable, The Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, Oyez, Oyez. All persons having business before the honorable the Supreme Court of the United States are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court.

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument first this morning in number 03-6696, Yaser Esam Hamdi versus Donald Rumsfeld. Mr. Dunham.

MR. FRANK W. DUNHAM, JR: 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 4th 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 4th 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 3 court to perform its judicial function of inquiry into the long term, indefinite detention of a citizen in a habeas corpus proceeding.

For, quoting from INS v Saint Seer, At it's 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 if protections have been strongest.

JUSTICE SANDRA DAY O'CONNOR: Do we have precedence 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 precendents that I'm aware of, Justice O'Connor. First is the treatment of American citizen -- Sabatour Spy in Ex Parte Quirin.

And the other is Mr. Turrito in In Re Turrito, which was a 9th Circuit case, it is not a case coming out of this court.

In our view -- First off, in Turrito, the -- he was not an enemy combatant, he was called a prisoner of war in that case. But in Turrito, there was a full hearing by the district judge.

Turrito 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 the 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 ANTONIN 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. And that--really--do we have to quibble about that word?

MR. DUNHAM: No, I mean, in it's ordinary sense, Your Honor, you're absolutely right. And that's the way we would take it to mean. We would give it--

JUSTICE KENNEDY: Well if the government's right, he's an unlawful belligerant, I take it. If the government is right.

MR. DUNHAM: Well, the government hasn't claimed on the record in this case which is limited to the Mobs Declaration--it doesn't say anywhere in the Mobs Declaration that Mr. Hamdi is an unlawful combatant.

The 4th Circuit in this case, limited the district court's consideration to that--to that affidavit, and said he could consider nothing else. Now there's 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--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 --

JUSTICE O'CONNOR: Yes --

CHIEF JUSTICE REHNQUIST: Happened in --

JUSTICE O'CONNOR: --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--is--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's fighting against our country, that's one thing. But what we're saying here is that that fact is in dispute and that we ought--

JUSTICE SCALIA: But you could say the same thing about non-citizen combatants. I mean any -- anyone captured in a war could say, You've 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? Or would you, I don't know.

MR. DUNHAM: No, I wouldn't allow every person captured to go through a habeas proceeding. But there's a different legal status of a US citizen from an enemy alien captured on a battlefield. They have a different status.

JUSTICE ANTHONY KENNEDY: Well, I'm still not clear what you do with Justice O'Connor's question--it's basically the Quirin case: you're a citizen, but you're an enemy combatant and you're captured. Are your rights any different from that of a non-citizen in the same status?

You haven't answered that.

MR. DUNHAM: Well--yes--your--first off, in Quirin we have to start with the premise that the Quirin proceeding was authorized by Congress. They were proceeding--

JUSTICE KENNEDY: Look, I'm asking you to distinguish between citizen and non-citizen 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 you are 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 RUTH GINSBURG: You mentioned in conncetion with Quirin that there was a statute. And I think one of the defendants--was alleged to be a US citizen.

So I thought you were making--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 in 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's any doubt as to thier 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 is, we have two claims here really.

The first is that he's never been--had an opportunity to give a--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 review in 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 a 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 those people who probably don't even remeber it?

If the military accorded some process at that time, as I understand they said they did, surely that is more reliable than anything you can come up now with 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: That's certainly part of the problem, Your Honor. We have a strong --

JUSTICE SCALIA: Well it is -- 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 -- it's just putting unreasonable demands on -- 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 the habeas corpus and the Fifth Amendment.

JUSTICE DAVID H. SOUTER: Are you --

JUSTICE KENNEDY: That's the question, is what it means. And the Chief Justice and Justice Scalia have 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?

I mean, 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're living in an age when we have -- we're not living in the World War II age. We have fax machines, we have phones that have pictures, you can get depositions --

JUSTICE SCALIAL: 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: That would be -- Your Honor, that would be a lot more than what we have now, and --

JUSTICE SCALIA: Oh, it certainly would, but you wouldn't accept that, would you?

MR. DUNHAM: Well, I wouldn't accept it without --

JUSTICE SCALIA: Of course you wouldn't.

MR. DUNHAM: Mr. Hamdi having 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 a response. That's your basic process claim?

MR. DUNHAM: That's correct, Your Honor. We have never authorized detention of a citizen in this country without giving them 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 together -- 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: 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.

JUSTICE SOUTER: No, 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: That's correct, Your Honor.

JUSTICE SOUTER: Alright.

MR. DUNHAM: The military procedure requires the military to call witnesses.

JUSTICE SOUTER: Right.

MR. DUNHAM: 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: No -- let's assume the regime that Justice Souter suggested, it's in place. Are you entitled to habeas in order to ensure that that is taking place and have the Article III court supervise that, or would affidavits that this -- from the government that 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're 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's 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 -- 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're not saying that it would be an adequate defense in the subsequent habeas petition 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 would allow the habeas court to reexamine the facts brought up in that hearing.

MR. DUNHAM: I believe that the habeas court could alays review the process to see that it was fair. That's a habeas court's function. But it wouldn't be anything extensive. If there was a record from the military proceeding the district judge would simply --

JUSTICE SCALIA: It depends on what you mean by fair, of course, and what -- what common law courts usually mean by fair, of course, is no hearsay testimony.

And you apply that rule to a -- 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: That's different.

JUSTICE SOUTER: But that --

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

MR. DUNHAM: Oh, no, not the reg -- whether the proceeding was fair, whether it complied with fundamental due process, and that would be --

JUSTICE SCALIA: But that -- that's something quite different from saying they followed the regulations. The regulations might be something that the common law judge thinks does not comply with due process, and in that case you would override the military judgment, right?

MR. DUNHAM: Well, the dist -- I believe the district court has that power, Your Honor. An Article III court has that power in a habeas proceeding.

JUSTICE STEPHEN G. BREYER: I didn't understand your basic answer. I thought -- 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's -- in response to Justice Scalia's question 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: Alright, it would satisfy you. Fine.

MR. DUNHAM: All I wanted to say was that you haven't had that hearing yet here --

JUSTICE BREYER: I understand that. That's the second half of my question. You -- 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 and so forth, ordinary procedure there, neutral decision maker, and an opportunity to prevent 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.

JUSTICE SOUTER: But that's -- 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 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 -- 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. The only --

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.

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: So he has them inherently. I mean, certainly, you know, when there's 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: No, is it -- is it conceivable that he has the right to kill them but not to detain them?

MR. DUNHAM: He has the right to detain alien combatants, no question about it.

JUSTICE SCALIA: Well --

MR. DUNHAM: But when it comes to U.S. citizens, you don't simply detain them, you prosecute them, like they did with John Walker Lindh, so you're saying --

JUSTICE O'CONNOR: But the --

JUSTICE KENNEDY: So you're saying AMUF is insufficient in this case to detain because declarations of war in AMUF historically have simply authorized the President to use his judgement and his force and his capacities and his power without having an extensive list of the different things 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, 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: That, 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 are talking about here is going on worldwide and is going in with -- within our own borders.

Congress didn't intend, 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, that -- Congress, there's 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 -- the traditions and the powers of that office?

MR. DUNHAM: I believe they autho -- authorized consistent with our laws. I don't think Congress repealed any laws when they wrote the authorization for use of military force --

JUSTICE JOHN PAUL STEVENS: Mr. Dunham, can I ask you sort of a preliminary question? We're talking about way down the road now, but do you -- 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 that 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 have appropriate protective orders in place so that I can convey classified information to the Court.

JUSTICE GINSBERG: Mr. Dunham, one of the judges on the Fourth Circuit in the en banc denial, Judge Motz, had a proposal that was similar to the one that Judge McCasey proposed in New York, that is that initially, the Mobbs affidavit is taken as -- as true.

(audio lost) Would that comport with due process in your view?

MR. DUNHAM: That, 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 -- they have conceeding 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 is spelled out in the U.S. Code. When Congress passed the authorization for use of military force, it did not say we suspend heabeas. It -- habeas corpus statues are still on the books and exeactly what your honor is talking about it what should happen.

JUSTICE SCALIA: So every United States citizen, even if captured on the field of combat is entitled to a habeas hearing?

MR. DUNHAM: That of court assumes you've captured on the field of combat, Your Honor --

JUSTICE SCALIA: Well, but -- that's right --

MR. DUNHAM: -- which we don't conceed.

JUSTICE SCALIA: Well that's right, he's entitled to a habeas hearing to determine whether in fact he was capture 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 and American citizen, and then the subsequent question that whether he was captured on the field of combat, while -- while taking up arms against the United States, right?

MR. DUNHAM: Well, the military --

JUSTICE SCALIA: So every -- every foreigner captured, if he claims to be an American citizen, would be entitled to the kind of habeas hearing you are talking about?

MR. DUNHAM: Not necessarily on the 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 are the ones that determined he was a citizen --

JUSTICE SCALIA: I am not talking about this case, I am talking about the principle you are asking us to adopt, and how it would apply.

I mean, if there's 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: That -- that, you know, may be the case, but that doesn't justify --

JUSTICE GINSBERG: If there is no basis --

MR. DUNHAM: -- taking away the habeas corpus right away 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 is captured on the field of battle is a -- is a very controverted question that's -- that's up here.

You can't say that without assurance, I mean that's -- that's why we have a case here.

MR. DUNHAM: Well, I -- I -- But, if it pleases the Court, I would like to save the balance of my time for rebuttal.

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 battefield, in order to prevent them from returning to the battle.

Over 10,000 United States troops return -- 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 GINSBERG: But the question of whether it's a criminal proceedure or this detention without -- is -- does the government have any rhyme or rationale as to why some of these people, I think Mr. Dunham mentioned Lindh, there's also Massoui, there's this Ujama, they -- they are also being kept from returning any place because there are criminal charges against them, and then there's Hamdi and Padilla and Al Mari, who are in this detention state with no charges. Is there -- how -- how -- what does the government, how does the government justify some going through the criminal process, others just being held indefinitely?

MR. CLEMENT: Justice Ginsberg, I think that reflects a sound exercise of prosecutorial and executive discretion.

There are some individuals who may be captured in the situation where they do 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.

(cough) Excuse me. But there are plenty of individuals who are either, have a pure amount of intelligence value, that putting them into the Article Three 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 BREYER: At the moment nobody --

JUSTICE KENNEDY: We're trying to find whether there are any literature or commentary on -- on how long detention is required before the intelligence value, the interrogation value of the custody serves no further purpose.

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

MR. CLEMENT: Well, Justice Kennedy, I am 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, suggest 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 amount of time.

Both these individuals now have access to counsel because the military intelligence experts who make these judgement have made the judgement that access to counsel at this point does no interfere with the intelligence gathering process.

JUSTICE KENNEDY: Would it be a -- a --

JUSTICE STEVENS: Mr. Clement, how can you assume -- go ahead --

JUSTICE KENNEYD: Would it -- would it be a helpful line of inquiry for a district court assuming -- assuming that there is some jurisdiction in the district court which would -- 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 mean, I suppose you could. One thing I would point you to, Justice Kennedy, is the -- 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 -- 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 intitial period where there was no access to counsel -- if a judge, for some reason, thought that that had taken to long, I suppose that judge could make an inquiry of the government 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 two-fold. One, to recognize that there is a unique interest, especially in the course of his 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 -- we can accept that, but 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. 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.

If one needs an act of Congress, and we question whether this really has anything to do with the detention of enemy combatants by 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 --

JUSTICE SOUTER: It certainly did -- may I ask just one more question -- I -- I will concede, at least, certainly for the sake of argument, that it did, in the early stages of the period starting with September 11, I will assume that it did when it was passed.

It doesn't follow, however, that it is adequate for all time. The -- the fact is, I will assume that on September 12, 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 definite for all time.

I guess the question I would be interested in your response to is this: Is it reasonable to think that the -- that the authorization was sufficient at the time it was passed but it -- 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 a conclusion that its prior authorization was good enough?

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

MR. CLEMENT: Well, Justice Souter, I would say a couple of things. One is, there may be some difficult questions down the road, but it bears emphasis that 10,000 United States troops remain on the battlefield in Afghanistan.

JUSTICE SOUTER: Well, there -- 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's a lot going on, but there's 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, ever day since September 18, 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 altogether 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 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 -- 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 been -- and made more specific to authorize what you're 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 you're -- when you say the Executive suffers, you're -- I think you're response is assuming that the Executive has the power, and it may very well be that the Executive has power in -- 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 -- is to continue.

MR. CLEMENT: But Justice Souter, they have authorized the use of force. They recognized many -- if you look at --

JUSTICE SOUTER: Without any specific reference to this situation, without any specific reference to -- to keeping American citizens detained indefinitely. I mean, that's the rub.

JUSTICE SCALIA: 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 -- 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 Afghanistan after two-and-a-half years, wouldn't it?

MR. CLEMENT: It would, Justice Scalia, and actually --

JUSTICE BREYER: It would, but it uses the --

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 there.

JUSTICE BREYER: Well, 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 Charta were according to law.

And whatever form of words in any of those documents are -- 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 decisionmaker and an opportunity to prevent proofs and arguments.

You've heard, in the last hour, people talking about the military itself recognizing that basic principle with tribunals in what's 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: That wasn't the question I asked. The question I asked -- is there any reason why the Army itself could not give a comprable, 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 hall in witnesses, but something that's practical insofar as you get evidence that's reasonably available.

MR. CLEMENT: Well Justice Breyer, there's --

JUSTICE BREYER: I want a practical answer, I don't want a -- yeah.

MR. CLEMENT: I understand that, but the practical answer that you're looking for assumes a process that's never been provided.

There's 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 Five of the Geneva Convention has no application here.

Again, that provision, and I think it's worth repeating --

JUSTICE O'CONNOR: Well perhaps, not. But we're here on habeas. Do you agree that he's entitled to bring a habeas action?

MR. CLEMENT: We do agree that he's entitled to bring a habeas --

JUSTICE O'CONNOR: Okay. So then we have to decide then to what he is entitled. And even at minimal review by the military you think, is not required?

MR. CLEMENT: Well, I don't it's required especially in a situation like this, where although Hamdi did not receive an Article Five 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's the kind of process prisoners of war and enemy combatances 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 Five process, that other prisoners of war traditionally get is a one-shot deal. Off the battlefield and that's it. You're under resolution for the remainder of the battle.

And there's no reason for Congress to have to go in for a new resolution, you're there for the remainder of the war.

Now in this context because we recognize that there are some unusual aspects to this war, and also because the United States military has no interest in detaining any individual who's not an enemy combattant 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 Three sense, but the interrogation process itself, provides the opportunity for an individual to explain that this has all been a mistake. And as the affadavit 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 affadavit 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 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, but the overwhelming military imperatives to this situation are that the habeas corpus writ is available, first to make legal challenges to the detention along the lines of 4001A, categorically procludes 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 the basis for the Court to police the line that separates Quirin on the one hand from Milligan on the other.

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

JUSTICE GINSBURG: In Quirin, the defendant were heard and the Mobs affadavit-- 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 affadavit, which is heresy, because Mobs doesn't know what happened on the battlefield either. And there's no statement at any point from Hamdi, although the claim before us is, that, he would dispute what's in the Mobs affadavit, 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 heresy. There is a statement in the Mobbs declaration itself, where Mobs is summarizing Hamdi himself.

JUSTICE GINSBURG: Yes, well certainly that is double heresy.

MR. CLEMENT: It certainly 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: Well, with respect Justice Ginsburg, he has an opportunity to explain it in his own words. Now it may not be --

JUSTICE SOUTER: During interrogation? 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 implied in the field, for all intensive purposes that is a neutral decision-maker.

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

The second thing I would say though, is 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: 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 sort of in draft form. So, I mean, I'm a little bit --

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, Mr. Clement, but you're assuming that he has no right to counsel, aren't you?

MR. CLEMENT: Well, 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 the counsel during the preliminary stages of his detention.

MR. CLEMENT: Not at the preliminary stages if the government has made the determination that access to counsel would interfere with the intelligence gathering process.

JUSTICE STEVENS: Are there any cases out there, it sounds from your argument, that the principal interests that the government wants to advance is the ability to interrogate the person for a sufficient length of time, to determine whether they'll 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 want to ask you about.

One, have you considered the possiblity that perhaps a lawyer would have explained to this man that if you do give some information, you won't have to stay here in communicado for two or three years? That might be a motivation to talk, that's one possibility.

And the second thing I wanted to ask you about, are there any cases in the international field, well anywhere, explaining that the interest in detaining a person in communicado for a long period of time for the purpose of obtaining information from him is a legitimate justification for it.

I understand, arresting on the battlefield, that's perfectly clear. But is this prolonged detention, for this purpose, the subject of judicial writing anywhere that you know about?

MR. CLEMENT: Well 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 to provide information, is to give them a lawyer, who will tell them,

Boy,you know, what's in your best interest is to plead to this relatively minor material support charge, or whatever, and provide the government with everything 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 and some people are used in the Article Three system and some people are prosecuted or dealt with in preventitive detention in the military system.

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's one other area where you're not going to get, unless the dynamic fundamentally changes.

Those people may best be dealt with in the way you envision. Whereas, other individuals, the only way the judgments of the intelligence experts have to deal with them, is to provide them without counsel and to use an interrogation.

I think, to get to your second part of the question. I don't know that there are any authorities that I am aware of that address exactly what you are 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 justification for the detention of enemy combattants 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 combattants is charged with a specific war crime, that at that point they are entitled to counsel.

But if they are just being held in a preventitive 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, warlike 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 are 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 hardcore 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 a judgment, or Congress may help us make a 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 hardcore Al Qaeda operatives, and they are going to join the battle against the United States wherever it is waged.

They just--

JUSTICE STEVENS: May I ask one other question, I think it's just relevant. Do you think there's anything in the law that curtails the method of interrogation that may be employed?

MR. CLEMENT: Well, I -- I think, there is Justice Stevens. I mean --

JUSTICE STEVENS: And what is that?

MR. CLEMENT: Well, I mean, just to give one example, I think that the United States' signatory to convention to prohibit torture and that sort of thing. That is, again, the United States is going to honor it's treaty obligations. The other thing that's worth mentioning --

JUSTICE GINSBURG: But you said something about self executing in connecting with the Geneva Convention, but you said 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 victim, I mean you have the Torture Victim Protection Act, which I think actually doesn't apply to the United States.

So I'm not sure 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 its 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 won't want there to be any misunderstanding about this, it's also the judgment of those involvement in these processes, that the last thing you want to do is to torture somebody or to do things along those lines.

I mean, if there are artificial, if you did that you might get information more quickly, but you'd really wonder about the reliability of the information you are getting.

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

JUSTICE BREYER: This is true, 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'm not quite sure what you have in mind that they'd 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: No, 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 to Justice O'Connor's question. Am I wrong?

MR. CLEMENT: Well Justice Souter, a couple of points. Well, one is, I don't think there's any contradiction with that and my answer to Justice Breyer's question.

I mean, you could imagine a situation where the evidence in the government's own affadavit shows, that somebody only detained in regard to the war in Afghanistan. And then, you could imagine that that has been signed, sealed and delivered.

It's over, the President says so. Congress says so. And there's an effort to continue to detain--

JUSTICE SOUTER: Well, I can imagine it. And I can also imagine that 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 is 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 --

JUSTICE KENNEDY: I'm taking away from the argument, the impression, and please correct me if I'm wrong, that you think there's 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's a continuing but modest role for the Courts. The habeas courts will remain over.

If someone, 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's 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 combattant 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 that 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 --

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. And 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: A process that we don't have yet. That's still on the drawing board, the annual review.

MR. CLEMENT: That's quite correct Justice Ginsburg, but I'd say for the time being, everything being provided to date is more than sufficient.

CHIEF JUSTICE REHNQUIST: Thank you Mr. Clement.

(audio missing -- Chief Justice Rehnquist instructs Mr. Dunham that he has several 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, Trust Us. And who's saying trust us, the Executive Branch. And why do we have the great rift? We have the great rift because we didn't trust the Executive Branch when we founded this government.

That's why the government is saying trust us, there's no excuse for taking away and driving a truck through the right to 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 combattant is.

And don't fool yourselves into thinking 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 laws on the books that relate to habeas corpus and how a habeas corpus is supposed to go. They leave the 4001A 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, that this is the law.

We authorize the executive to detain people and to give them hearings the way the military says. And it would be lawful. But Congress hasn't done that. And I respectfully submit to your honors, that until Congress does act, 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.