Oral Arguments took place this morning in Boumediene v. Bush and its sister case, Al-Odah v. US. Because of the heightened interest in the case, the Supreme Court opted to expedite the delivery of the audio recording and it was broadcast on C-Span by 11:50EST, less than an hour after the arguments concluded.

The arguments went almost exactly as expected. The obvious things first- Justice Scalia gave Seth Waxman, attorney for the detainees, a hard time. Justice Scalia repeatedly grilled Waxman on his position, arguing that there is no precedence, either in United States or English common law, that habeus corpus should be extended to non-citizens outside sovereign territory. This led Waxman to suggest (albeit indirectly) that Justice Scalia’s concerns may not reflect those of his eight colleagues.

Justices Souter and Breyer attacked Solicitor General Clements in the same way that Justice Scalia attacked Waxman, the only difference being that Souter was marginally less forceful. There was a substantial amount of discussion over whether Guantanamo Bay fell under the legal jurisdiction of the United States or Cuba. Justice Kennedy, who will likely be the swing vote, only asked a few questions, and it was difficult to read his opinion on the matter.

Chief Justice Roberts and Justice Alito both asked a few questions and appeared to be generally engaged.

I got the impression from the Justices that the most fundamental outcome of this case was a foregone conclusion. A majority of the Justices have clearly indicated that they believe detainees in Guantanamo Bay are subject to some form of habeus protection. The question now is whether or not the DC Court of Appeals is the proper location for that habeus filing, whether or not other issues can be brought up by detainees, and how the DC court should handle the cases if and when they are filed.

It seems rather inevitable that the Court here will not agree with the DC Court. Only the most conservative Justices (perhaps Justice Scalia alone) believe that detainees held at Guantanamo Bay should not be granted any habeus rights.

You can stream the oral arguments for yourself here (RealPlayer required.)


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