Justice Kennedy in Boumediene Oral Argument
In reading the transcript of the oral argument in Boumediene today, I spent some time looking for clues about Justice Kennedy. If you look at the transcript, he asked only a handful of questions and almost all focused on the D.C. Circuit’s review as an adequate substitute for habeas. Other than one joke (p. 30) and one question about how much direction the Court could give to the D.C. Circuit if it held that it lacked habeas jurisdiction (p. 63), all of Kennedy’s questions were about how one could reach the conclusion that the DTA review was not adequate, particularly given that all the procedural and substantive concerns one might raise in habeas could also be brought there.
By my read of it, Justice Kennedy clearly seemed to lean toward a view that DTA review was indeed adequate. Which means that he appears to favor the government position. Here are the six key exchanges.
First Exchange (pp. 20-21):
JUSTICE KENNEDY: Suppose there had not been a six-year wait, would it be appropriate then for us to — if you prevail — remand the case to the habeas court and instruct the habeas court to defer until the Court of Appeals for the District of Columbia has finished the DTA review proceedings?
MR. WAXMAN: I would argue that the answer is no for two reasons. The one because there is no prospect, no prospect that the DTA proceedings will be conducted with alacrity or certainty …
JUSTICE KENNEDY: Why should I assume that the district court in Washington would be any faster than the court of appeals?
Second Exchange (p. 22):
MR. WAXMAN: … the Petitioners have to have the right to adduce and present evidence to controvert the government’s return which was — almost all of the government’s evidence was introduced ex parte, in camera, and with a — to boot with a presumption that it is accurate and genuine.
JUSTICE KENNEDY: Why can’t that take place in the CSRT review proceedings that are pending?
Third Exchange (p. 53):
JUSTICE KENNEDY: I didn’t understand that point when you were having your colloquy with Justice Breyer, either. I thought you were going to answer to Justice Breyer, that the court of appeals does have the right to determine whether to the extent the Constitution and the laws of the United States are applicable, whether such standards and procedures, such as CSRT, are — – to make the determination — are consistent with the Constitution –
GENERAL CLEMENT: Yes, Justice –
JUSTICE KENNEDY: — that’s provided in the MCA.
GENERAL CLEMENT: It absolutely is….
Fourth Exchange (p. 54):
JUSTICE BREYER: …. [Y]ou could have the best procedure in the world, and they’re totally constitutional…. They’re not going to concede it. They’re assuming it. On that assumption, we still think that Congress, the President, the Supreme Court under the law, cannot hold us for six years without either trying us, releasing us, or maybe confining us under some special statute involving preventive detention and danger which has not yet been enacted….
JUSTICE KENNEDY: But the statute talks about standards. Why can’t that question that Justice Breyer raised be reached by the Court of Appeals under the CSRT review hearings when it determines the constitutional adequacy of the standards, or am I missing something?
Fifth Exchange (p. 55):
JUSTICE KENNEDY: Just one more question on that point: Would the Court of Appeals in — under the MCA have the authority to question the constitutionality of the definition of noncombatant — of unlawful combatant?
GENERAL CLEMENT: Absolutely, Justice Kennedy. That would be available to them in the D.C. Circuit.
Sixth Exchange (pp. 73-74):
MR. WAXMAN: … We can raise that claim because they have to establish that the procedures and standards were consistent not only with the Constitution but also with the laws of the United States. And the problem this is this –
CHIEF JUSTICE ROBERTS: That is an argument that, I gather, both sides agree is available to you under the DTA before the D.C. Circuit.
MR. WAXMAN: That is absolutely correct….
JUSTICE KENNEDY: What does that tell you about the adequacy of the substitute?