Both Paul Clement and Seth Waxman were superlative — two of the best at their very best.

The key to the case, I think, was a question of Justice Kennedy’s about three-quarters of the way through, in the SG’s argument (it’ll be obvious on the tape and in the transcript), wondering why the D.C. Circuit could not adequately handle some of the trickier problems that the petitioners had raised, such as whether the government’s definition of “enemy combatant” is consistent with the AUMF and Constitution. Justice Kennedy referred, in particular, to the provision of the DTA stating that, “to the extent the Constitution and laws of the United States are applicable,” the court of appeals may determine “whether the use of [the CSRT's] standards and procedures to make the [detention] determination is consistent with the Constitution and laws of the United States.” DTA § 1005(e)(2)(C). (The Solicitor General strongly implied on several occasions that to the extent the Court thinks the MCA/DTA procedure is inadequate, the Court could construe the statute to permit the D.C. Circuit the power to deal with the shortfall, e.g., to order release of a petitioner rather than simply remand to the CSRT).

Part of the answer to Justice Kennedy’s question is simply “six years” (the phrase most often invoked in today’s argument). That’s how long these detainees have been held, and the Court obviously sees the potential prospect of a substantially longer delay if the government is given the opportunity to litigate each of these other difficult issues in the D.C. Circuit.

More importantly, Seth Waxman in rebuttal seized on Justice Kennedy’s critical question, and, in my humble opinion, gave one of the more powerful and effective rebuttals I’ve ever seen — one that addresses not only Justice Kennedy’s question, but also goes to the heart of why, at least for these detainees (if not, perhaps for any future detainees, who might be the beneficiaries of a revamped system), this system of indefinite detention is fatally flawed. Listen for it.

[Disclosure: I consulted on the Boumediene briefs and argument.]

Posted in Boumediene/Al-Odah v. Bush, Uncategorized