Commentary

When several Justices of the Supreme Court tell an attorney they do not understand his argument, and they do so because the argument was, indeed, fundamentally confusing, the chances of winning may be significantly reduced. When Chicago lawyer Joseph Margulies on Tuesday argued the latest case on detainees’ rights, his responses to the Justices’ questions turned a supposedly simple argument into a complex maze, and the Court bluntly told him so. A telltale sign of his woe: Justice John Paul Stevens, whose vote Margulies almost certainly needs, seemed close to bafflement about that side of the argument as the Court heard the consolidated cases of Munaf v. Geren (06-1666) and Geren v. Omar (07-394).

This dispute is about the rights, if any, that U.S. citizens being held captive in Iraq by U.S. military forces there have to go into U.S. courts and challenge their detention and their transfer to Iraqi authorities for what they fear will be torture or abuse as part of criminal prosecution under Iraqi law. Margulies’ basic argument was simple: these are citizens, they are in the custody of U.S. military officials, and, by those facts alone, U.S. courts have jurisdiction to hear their habeas challenges. But, in an apparent need to accommodate what he seemed to think might be holes in his case, his argument wound up with an array of qualifying and complicating shadings. At one point, he even seemed to be conceding points that are being litigated energetically by lawyers who are defending other detainees in U.S. custody: that Congress has validly cut off habeas rights for foreign nationals, and that foreign nationals have no due process rights.

The lack of clarity was particularly telling because Margulies’ adversary, Deputy Solicitor General Gregory G. Garre, made an argument that was simplicitly itself. First, Garre argued, the detainees in Iraq are being held not by the U.S., but by an international military coalition, so they are simply outside the reach of U.S. courts. And, second, U.S. courts should not be second-guessing the criminal justice system of another sovereign nation. While the government lawyer here and there seemed to accept that some part of his argument might be weak, he managed to say that those points were not critical to this case, and could be left for another day.

Margulies, who argued second, began with a straightforward discussion of his basic points, and moved quickly to undermine the significance of a World War II-era precedent (Hirota v. MacArthur) on which the government heavily relies. But, after that brief opening, he promptly got into trouble in exchanges with Justice Stevens. It was over the issue — looming larger as the argument moved along — of whether Margulies’ case depended entirely upon the fact that the two prisoners were U.S. citizens. The lawyer said no, but added that he was taking no position on whether habeas jurisdiction extended to foreign nationals. He went on to say, though, that habeas rights were rights of citizenship.

No sooner had that brief exchange ended than Margulies left Stevens confused about whether it made any difference that the two prisoners were being held in a war zone. The lawyer tried to draw a distinction between war zone detention at the moment of capture (no habeas rights, apparently) and later, after months had passed. But in discussing the point, he appeared to leave Stevens unsure where a legal line might be drawn.

The citizenship predicate of his argument came up again in questions by Justice Anthony M. Kennedy and Justice Ruth Bader Ginsburg. Presently, Margulies was defending the authority of the military to turn non-citizen prisoners in Iraq over to Iraqi authorities, under “the laws of war.”

The distinctions Margulies was undertaking to assert led Chief Justice John G. Roberts, Jr., to question how a habeas court could take all of those factors into account. “So,” Roberts asked, “a habeas court here has to look at all those different facgtors and come to a determination of whether it has jurisdiction? There’s no bright line?” Margulies said no, and, when pressed, said the bright line was one word: “Control. That is what habeas turns on, Your Honor.” Soon, though, Roberts took the questioning back to the citizenship issue, causing Margulies to apologize for perhaps having caused confusion. And Justice Samuel A. Alito, Jr., stepped in to say that he did not understand “what you’re saying about citizenship.” Alito expressed concern about thousands of non-citizen captives in Iraq filing habeas petitions, to which Margulies replied that Congress had cut off foreign nationals’ habeas rights, and added that there were doubts that foreign nationals could claim due process rights.

There was an interlude for confusing exchanges over the military’s detention power in the war zone, and that left Justice David H. Souter expressing open confusion. And the qualifiers Margulies put before the Court in that sequence once again led the Chief Justice to wonder about whether there was a bright line on habeas authority. The argument not long afterward then descended into another vale of confusion over just what relief the detainees were seeking and whether a habeas court could provide it. He suggested that there could be a variety of scenarios, but found no chance to articulate all of what those might be. The Chief Justice indicated he did not understand, and Margulies struggled, without apparent success, to help out, drawing uncertain distinctions between “release” and “transfer.” “I just question,” the Chief Justice eventually told him, “whether habeas is an appropriate remedy…because it’s not concerned with the legality of transfer; it’s concerned with the legality of custody.” And, Roberts added, “The bright line is getting awfully fuzzy, as far as I’m concerned.”

Justice Kennedy soon told Margulies that his argument had become “wildly overbroad” and just wrong. And Justice Stephen G. Breyer chimed in to recall the simple argument with which Margulies had begun, then added: “You’ve been arguing for all sorts of things that seem far broader than that.”

Deputy Solicitor General Garre, in his time at the podium, had significant difficulties with Justices Ginsburg and David H. Souter, who energetically moved to undercut his reliance upon the Hirota ruling as precedent for deciding these new cases. As Souter told the government lawyer: “I don’t think Hirota is a very strong precedent against our at least taking the realistic view of it.” Garre also had some trouble with Justice Breyer over whether the Iraqi military command actually was a U.S. operation rather than an international force, but the government lawyer stuck by his argument, contending that “an international body distinct from the United States is controlling the strings.” He even told Justice Stevens that the government argument would be the same even if the place of detention of the captives was inside the U.S.

Chief Justice Roberts asked Garre at one point whether there were a “limit to your proposition.” What happens, the Chief asked, if it is understood that the individuals are going to be released “in a situation where you know that they won’t receive anything resembling due process and will be subject to abuse?” Garre took a somewhat heroic position: if American citizens go abroad, they “have to take what they get.” But then, relenting a bit, he said that “if this Court thinks that it would be different if there were no system of fairness or process, then it could reserve that question for another case.”

The Deputy Solicitor General also tried to deflect suggestions that situations in Iraq’s prisons were out of control; he said that was a problem in the Interior and Defense Ministries, but not in the criminal justice system.

The Court now begins deliberating over the decision, and is expected to decide the case by early summer.

Posted in Munaf v. Geren/Geren v. Omar, Uncategorized