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Thoughts on the Oral Argument in Boumediene v. Bush:
I just returned from this morning's oral argument in Boumediene v. Bush. Here are some thoughts on the argument and where the Court might go.

  Overall, I thought it was a frustrating argument. The problem, I think, is that 8 of the 9 Justices have already expressed a view on whether Guantanamo Bay is part of the United States for habeas purposes (5 yes, 3 no). So there wasn't much that was fresh to debate there. Then, once you get past that threshold question, you run into the uncertainty of knowing what to do next. It's easy for the Supreme Court to tell the D.C. Circuit that there habeas rights at Gitmo. But it's really hard to get into the adequacy of of the DC Circuit's proceedings when we don't really know what those proceedings are or what rights those proceedings might protect. Indeed, these were the prudential reasons why the Court initially lacked the needed four votes to grant cert.

  As a result of those difficulties, neither Waxman nor Clement seemed to get traction in their argument. There was a lot of individual venting by Justices with strong views. Justice Scalia took on Waxman, and Souter took on Clement, each Justice expressing their frustrations with the positions taken by the other side. But it wasn't clear if either of these exchanges were at all relevant to where the Court might go. (Waxman even made some subtle jokes about this, making clear that Scalia's questions expressed his concerns but not those shared by a majority of the Justices.)

  Justice Kennedy was unusually quiet. Justice Kennedy didn't say a word until Waxman's argument was about half over, and even then he didn't seem to take strong views on either side. He seemed to be most interested on what sort of proceedings would go on below in the D.C. Circuit or the District Court if the Supreme Court reversed; there was an interesting dicussion more generally around that same point in the argument about why the D.C. Circuit has been so unusually slow in deciding Guantanamo-related cases. But on the whole Justice Kennedy didn't seem particularly worked up about one side or the other.

  What is likely to happen in the case? My guess is that the Supreme Court will reverse and remand. They'll probably say that there is a Constitutional right to habeas jurisdiction for the Guantanamo detainees, and then remand back to the D.C. Circuit to shape its proceedings in light of the constitutional requirement. Based on Kennedy's questions, I expect they'll also say that they interpret the DTA to allow a wide range of Constitutional challenges by detainees when they bring suit in the D.C. Circuit following their CSRT decisions. That's my guess, at least.

  UPDATE: You can now listen to the argument yourself via C-Span; Howard's post has the link. Also, Marty Lederman offers his quick take here.
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