Justice Kennedy in Boumediene Oral Argument

by Roger Alford

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 –


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?


8 Responses

  1. Yes and, as I read him, there appears to be little sympathy from him for the kangaroo nature of the CSRT and MCA procedures being a problem prior to the DC Circuit acting. I think that if there are 4 to say that the DC Circuit review can include release (not a return to a new CSRT or MCA process) then Kennedy will join those four to make a majority. That will be the adequate alternative to habeas and the rest of “enemy combatant definition” and “adequate procedures” will be for the lower court. I wonder how an international criminal tribunal will review this in the future.



  2. Quoting Ben, “I wonder how an international criminal tribunal will review this in the future.” Lol!!!!!!!

  3. At this time it is difficult to render an option about a DC Circuit review that has barely started. If the current plurality is inclined to defer to that review, then there is no pressure for prompt action and instead of rendering an opinion the Court may simply put this case on the back burner pending action by the DC Circuit. That had been the original timeline, but the Court was rushed into granting cert in order to stay the mandate dismissing all the Habeas cases in the lower courts. If the swing vote takes this position, the result may be no decision for now rather than a decision favoring the government.

  4. Actually, I thought the most interesting undercurrent was how many times Justice Breyer, in passing in his questions, made reference to the possibility of a special preventive or administrative detention statute. The reference, usually in passing, seemed to show up in at least half of his questions. Is this a hint from Justice Breyer to the administration, or a future administration, as to how to proceed?

  5. That certainly would appear to be in line with the effort bruiting around to have a National Security Court and a preventive detention regime for persons detained by the United States domestically or internationally. Oy vey! A path I sincerely hope we do not go down because I have no faith that it will be handled with any intelligence.



  6. made reference to the possibility of a special preventive or administrative detention statute.

    I see that as a legitimate option given the cases, but not the only one. In any event, I fail to understand why the MCA/DTA regime is not roughly equivalent to that.

  7. In any event, I fail to understand why the MCA/DTA regime is not roughly equivalent to that.

    Because indefinite detention at the pleasure of the executive is not a legitimate part of any Constitutional statute.

  8. How to get to a decision that the DC Circuit does the first review of the adequacy of the CSRT/DTA procedure? (1) The Court has to hold that the detainees have some rights in order to make a habeas substitute necessary. Since 4 justices will agree that there were no such rights in 1789, I think the other 5 will rely on Justice Stevens’ “common law of war” which provided the substantive law in 1789 and does so today and incorporates to some degree the Geneva convention. (2) The Court has to say what process the detainees are due. Since Clement almost conceded a release remedy and Waxman’s rebuttal knocked Breyer’s question out of the park, I think a release remedy and a substantive review of the evidence are the most obvious. However, this issue is before the Court solely in the merits of the habeas. (3) Things can work in mysterious ways. Watch for the en banc DC Circuit to certify to the Supreme Court the issue of whether detainees have any rights. Or the Court could reconsider the denial of cert before judgment in Hamdan v. Gates (Bismullah in the DC Circuit).

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