The Nine [178]
“Isn’t there a pretty good argument that a suspension of the writ by Congress is just about the most stupendously significant act that the Congress of the United States can take?” he asked. “And, therefore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?”
Well, Clement replied, if we’re only talking about people outside the territory of the United States…
“Now wait a minute,” Souter shot back. “The writ is the writ!”
But in a Supreme Court without O’Connor, Hamdan would be a breathless wait to see which way Anthony Kennedy was going to vote. Scalia, Thomas, and Alito were likely allies of the administration; Stevens, Souter, Breyer, and Ginsburg would go the other way. (Roberts could not participate because he had already ruled in the case, on the Bush side, in the D.C. Circuit.)
The case tapped into Kennedy’s deep interest in international law. Indeed, in just a few weeks Kennedy would be leaving for Salzburg and then, in 2006, for a round-the-world tour: Washington to Hawaii, for a speech before the American Bar Association; to Malaysia, to meet with the sultan, who was also a judge; on to Dubai for a conference of four hundred judges; and then to the Old Bailey, in London, where he would observe a murder trial; and finally back to Washington. The heart of the Bush administration’s argument before the Court in Hamdan was that the Geneva Conventions—the treaty that is at the core of international law and that the United States had long ago signed—did not apply to the prisoners at Guantánamo.
“Well, let me put it this way,” Kennedy said to Katyal. “If we were to find that the Geneva Convention or other settled principles of international law were controlling here, why couldn’t we just remand to the D.C. Circuit and let it figure that out?”
That might work, Katyal said.
“Well, suppose we told the D.C. Circuit that the Geneva Convention or some other body of international law controls…?”
Kennedy was tipping his hand. At conference, he joined the four liberals in striking down the Bush plans for Guantánamo—again. Stevens’s opinion for the Court, issued on June 29, the last day of the term, amounted to an even more thorough rebuke to the administration than the Court had issued two years earlier. The Pentagon could not write procedures for the military commissions unilaterally; Congress had to approve them as well. The Pentagon could not ignore the Geneva Conventions; the procedures had to comport with the treaty. The courts would not sit out the dispute, as Clement had urged, until detainees had actually been convicted and sentenced. The administration would have to start complying with the Constitution right away. Writing in his usual restrained style, Stevens made clear that he and his colleagues regarded the Bush position as something close to lawless. The Geneva Convention “is applicable here,” he wrote, and “requires that Hamdan be tried by a ‘regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’ ”
The dissenters replied with rhetoric that reflected the Republican political campaigns of 2002, 2004, and 2006. Thomas said the decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy,” and suggested that it under-mined the nation’s ability to “preven[t] future attacks.” Joined by Kennedy, Souter, and Ginsburg, Breyer issued an unusually pointed and eloquent reply in a concurring opinion in which he quoted the famous words of his departed ally, O’Connor: “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’ ”
As both sides in Hamdan recognized, the case was crucial, and not just because the detainees in Guantánamo Bay faced the possibility of