Yesterday, in addition to announcing its decision in the Medellin case (which I blogged about here), the Supreme Court heard argument in two cases relating to the War on Terror.
First, in Munaf v. Geren, two U.S. citizens (also citizens of Jordan and Iraq, respectively) held captive in Iraq by U.S. forces – as part of Multi-National Force-Iraq, which may but should be a key determinant – challenged their detention and potential transfer to Iraqi authorities for what they fear will be torture as part of criminal prosecution in Iraqi courts. This seems to be an easier case than Boumediene, a case argued in December wherein Guantanamo detainees challenge their containment and the military commissions by which they are to be tried. (My colleague Tim Lynch blogged about that case here and here, and also filed an amicus brief.)
Whatever hope the detainees had was probably dashed by the incoherent presentation made by Northwestern Law School Clinical Professor Joseph Margulies on their behalf. As Lyle Denniston of SCOTUSblog put it, “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.” Ouch. Margulies turned what should be relatively straightforward issues into a convoluted maze, and those of us in the audience were not the only ones shaking our heads.
The second argument, and the one relating to the title of this blog post, involved the prosecution of the guy who was caught smuggling explosives into the U.S. from Canada in an attempt to blow up LAX at the turn of the century. (Is it ok to use that expression for the 1999-2000 period yet?) In United States v. Ressam, Attorney General Mukasey exercised the AG’s historical (but not much used of late) prerogative to argue before the high court, defending the 10-year additional prison term slapped on the Milennial bomber for “carrying an explosive” while “committing a felony” – the felony being lying to the border guard. Having learned from Margulies’s example, Mukasey did a workmanlike job and sat down with 14 minutes remaining in his allotted time. The case will turn on some rather technical statutory analysis which I’ll spare you, but it was refreshing to see an appellate advocate who was clearly not there to hear his own voice.