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Supreme Court Hears Hamdan Arguments

The Supreme Court heard oral arguments today in the case of Salim Ahmed Hamdan, a Guantanamo detainee who was a chauffer for Osama bin Laden.

Justices Antonin Scalia and Samuel Alito, the newest member of the court, pressed [defense lawyer] Katyal to explain why a defendant before a military commission should be given something that defendants in civilian criminal trials normally don't get -- the chance to challenge the case before a verdict is reached.

"If this were like a (civilian) criminal proceeding, we wouldn't be here," Katyal said.

.... Alito also suggested the justices should wait until Hamdan's trial is over to allow him to question whether charging him with conspiracy violates the laws of war, as Katyal contends.

But Katyal brushed aside the contention. "The government has had four years to get their charges together on Mr. Hamdan," he said.

Scotus Blog, whose firm is co-counsel for Hamden, recaps the hearing and has analysis. They thought it went pretty well, and that Justice Kennedy will be a crucial vote. On whole:

There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.

The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia's points as if they were stronger than his own.

Here is a new article on the case, written by Hamden's lawyer, Neal Kaytal. And a Slate article written by a Yale law student who worked as a law clerk for the d