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Thursday, March 30, 2006

"Because I Say So" - Bush Administration

One of the most dramatic moments in today's oral argument in Hamdan v. Rumsfeld comes when an uncharacteristically agitated Justice David Souter presses Solicitor General Paul Clement about whether Congress last December effectively stripped the Supreme Court of the right to hear habeas corpus claims from any of the hundreds of detainees being held at Guantanamo Bay. Clement says it's not necessary for Congress to have "consciously thought it was suspending the Writ." Perhaps the lawmakers just "stumbled on the suspension of the Writ," which would also be fine, Clement suggests.
 
Souter stops him, amazed. "The suspension of the Writ," the justice sputters, is the most "stupendously significant act" Congress can undertake. "Are you really saying Congress may validly suspend it inadvertently?" he asks. It's the morning's best example of the degree to which, for Souter as well as for Justice Stephen Breyer, today's argument is an agonizing exercise in Bush administration doublespeak. Clement's arguments are frequently drawn from the well of "because the president says so," or "because the president is the president," or "because it's wartime." They start to sound like Alberto Gonzales' testimony before Congress or the president's signing statements: legal analysis by assertion and justification by double standard. This war is like every other war except to the extent that it differs from those other wars. We follow the laws of war except to the extent that they do not apply to us. These prisoners have all the rights to which they are entitled by law, except to the extent that we have changed the law to limit their rights.
 
In other words, there is almost no question for which the government cannot find a circular answer.
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