If I had to guess, the following exchange from yesterday’s oral argument in Hamdan v. Rumsfeld (which I have slightly edited from the court’s official transcript) is the best sign as to where the Court is heading in the case:
JUSTICE KENNEDY: I have trouble with the argument that [Hamdan cannot challenge the] structural invalidity to the military commission, that he brings that before the commission. The historic office of habeas is to test whether or not you are being tried by a lawful tribunal. And he says, under the Geneva Convention, as you know, that it isn’t.
GENERAL CLEMENT: Well, and we disagree with those claims. We think that most of those claims — to the extent that he thinks some procedural requirement is provided either by the Geneva Convention, if applicable –but we don’t think it would be — and that argument would be made; but, if by some other, sort of, principle of the law or that a procedure is required –
JUSTICE KENNEDY: Well, it’s not some procedural [requirement] — it’s the structural requirement of the composition and the appointing origins of the court.
* * *
JUSTICE SCALIA: We don’t — we don’t intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding’s terminated, normally.
GENERAL CLEMENT: That’s exactly right, Justice Scalia.
JUSTICE KENNEDY: Well, is that true? If a group of people decide they’re going to try somebody, we wait until that group of people finishes the trial before the Court — before habeas intervenes to determine the authority of the tribunal to hold and to try?
GENERAL CLEMENT: Well, with respect, Justice Kennedy, this isn’t a “group of people.” This is the President invoking an authority that he’s exercised in virtually every war that we’ve had. It’s something that was recognized in the Civil War, something in the World War II that this Court approved.
JUSTICE KENNEDY: I had thought that the historic function of habeas — one of its functions — is to test the jurisdiction and the legitimacy of a court.
Thanks to Howard for the link to the oral argument transcript.