Scalia did not recuse himself. Chief Justice Roberts did not participate because he was on the Court of Appeals panel in the case.
I emphasize the statements of Justice Kennedy below as he is likely to be the swing vote in this case. I am also quoting liberally, but primarily from quotations or paraphrases of the proceeding itself, rather than from analysis from the various sources involved, and in each case with a link providing attribution and access to the fuller story from that source. The full transcript is here.
One observer summarized the proceedings as follows (emphasis added):
Scalia asks the first question of Katyal (who has an exceptionally clear voice & projects very well, he hardly needed a microphone), but otherwise the justices ask relative few questions of Katyal, who gets opportunity for long discourses. I found most interesting when Katyal put the military commissions and habeas in their historical context, for example noting that from General George Washington onwards, the military commissions were precisely circumscribed.
11:43, SG Clement starts, as before, he uses no notes or anything else on the podium, having so well memorized/rehearsed his pitch, but about a third of the way through, he did uncharacteristically have to retrieve one of the briefs from the counsel's table, for a few minutes. Overall, there were definitely far more questions of the SG, with several justices interrupting his responses in order to restate their questions. Kennedy's frustration with the SG was palpable and it didn't seem to me that the SG was able to satisfy Kennedy. Breyer, Souter, and even Stevens, also had to interrupt the SG to get him to answer their questions.
Scalia's key comment of the SG was that this was merely a "suspension" of the writ of habeas corpus, which he seemed to view as okay, so that everything else that followed was also okay. But that didn't seem to garner support from the rest of the bench.
Breyer's key questions to the SG were that the Authorization for Use of Military Force (Nov. 2001) did not authorize the Guantanamo commissions or the related detentions, removal from civil courts, etc. A number of the detainees were not actually captured on the battlefield, but were turned in by informants much later, and not necessarily charged with war crimes as such. Breyer emphasizes that these are "terribly difficult and important constitutional questions."
By 12:10 p.m., several of the justices on the north side of the bench were obviously glancing at the clock in the back of the room, but they had to wait another 25 minutes. In contrast to the ERISA case, where the justices kept the pages busy running back to get volumes of the US Reports or to pass notes, the pages had much less to do during the second argument, as the justices were more clearly focused on the oral argument in front of them.
12:28-12:31, Katyal did his rebuttal, with only 2 short questions from Stevens.
Hard to predict the outcome, but I doubt that there will be a 4-4 affirmance of the DC Circuit, as the SCT will assuredly want to have the last word. I predict that Kennedy will join Stevens-Breyer-Ginsburg-Souter for a 5-3 decision. Alito asked very few questions, Thomas none at all, and Scalia's questions were somewhat calmer than I've seen in the past.
SCOTUS Blog comes to the same conclusion (emphasis added):
From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously -- and repeatedly -- advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress' power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail. . . .
With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kenne[d]y might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed trouble[d] about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.
The liberal four Justices, Breyer, Souter, Ginsburg, and Stevens were clearly skeptical of the government case. Justice Scalia clearly favors the government position. Justices Alito and Thomas while largely silent are expected to favor the government.
The Associated Press noted that:
Several justices seemed deeply concerned that the government had gone too far in its plans to hold a special trial for Osama bin Laden's former driver on a conspiracy charge.
Some were downright indignant over the Bush administration's claim that a new federal law bars the high court from ruling in the case of Salim Ahmed Hamdan. . . .
Justice Anthony M. Kennedy questioned Solicitor General Paul Clement about the legal safeguards for the trials. Justice Stephen Breyer also asked what would stop the president from holding the same type of trial in Toledo, Ohio, not just at the military prison in Guantanamo Bay, Cuba. . . .
Alito, the newest justice, suggested the court 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.
The L.A. Times noted that (emphasis added):
The Constitution says the ancient right of habeas corpus cannot be suspended except in times of invasion and insurrection. Congress cited neither, said Justice John Paul Stevens.
"This raises a terribly difficult question," added Justice Stephen Breyer.
He was joined by Justices Anthony Kennedy and David H. Souter, both of whom took sharp exception to the notion that Congress could strip the high court of the power to decide Hamdan's case. . . .
Only Justices Antonin Scalia and Samuel A. Alito Jr. spoke up in defense of the government's argument.
Souter takes a slightly different tack: If you accept that the military commissions apply the laws of war, don't you have to accept the Geneva Conventions? he asks. Clement responds that the commissions can "adjudicate that the Geneva Conventions don't apply."
"You can't have it both ways, " Souter retorts. The government can't say the president is operating under the laws of war, as recognized by Congress, and then for purposes of defining those laws, say the Geneva Conventions don't apply.
Sure it can. Clement replies that if a detainee has such a claim, he should bring it before the military courts. Even Kennedy seems alarmed now. He confesses that he's troubled by the notion of bringing challenges about the structure of the tribunal to the tribunal itself. "If a group is going to try some people, do you first have the trial and then challenge the legitimacy of the tribunal?" he asks incredulously.
Clement objects to his word choice. "This isn't just some group of people," he says. This is the president invoking his authority to try terrorists.
Breyer goes back to the DTA and whether it stripped the court of jurisdiction to rule on Hamdan's claims. He asks how the court can avoid "the most terribly difficult question of whether Congress can constitutionally deprive this court of jurisdiction in habeas cases." . . . .
Later Breyer will add: "You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him." To which Clement's answer is the fail-safe: "This is a war."
And even as it starts to be clear that he is losing Kennedy—who asks whether Hamdan isn't "uniquely vulnerable" and thus entitled to the theoretical protection of the Geneva Conventions—Clement stands firm in his claim that the Guantanamo detainees are different from regular POWs because, well, they are.
And from the Washington Post:
A key comment came from Justice Anthony M. Kennedy, the closely divided court's moderate-conservative swing voter. He told Solicitor General Paul D. Clement that he has "trouble with the argument" that, because of the new law, court challenges to the commissions must wait until the trials are over.
"I had thought that the historic function of habeas corpus is to . . . test the jurisdiction and legitimacy of a court," Kennedy said. . . . Kennedy pitched one approach, under which the court might uphold the military commissions, as the administration wants, but require that they proceed in accordance with the Geneva Conventions, international treaties that protect war detainees, as its opponents urge. Then, he suggested, the court could "just remand it for [a lower court] to go into all these arguments." . . . Justice Stephen G. Breyer spoke in strong terms about detainees at the U.S. prison at Guantanamo Bay who are "claiming -- some -- that they were tortured," and of the prospect that the president would use a commission to "pick up an alien and not have any trial at all except for that special commission."
The New York Times said:
At least five justices — John Paul Stevens, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction. . . . Justice Breyer, in his questioning of Mr. Clement, practically begged the solicitor general to endorse an alternative approach that would permit the court to avoid "the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this court of jurisdiction in habeas corpus cases."
The alternative at hand was the one offered by Mr. Hamdan's lawyer, Neal Katyal, a law professor at Georgetown University. That was to interpret the Detainee Treatment Act as applying only prospectively, stripping federal courts of hearing future cases brought by the Guantánamo detainees but permitting at least the Supreme Court to continue with this one. . . .
For example, Justice Kennedy was questioning Mr. Clement on the government's position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan's trial. Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was challenging a "structural invalidity to the military commission," its lack of compliance with protections guaranteed by the Geneva Conventions.
"The historic office of habeas corpus is to test whether or not you're being tried by a lawful tribunal," Justice Kennedy continued. "And he says, under the Geneva Convention, as you know, that it isn't."
Mr. Clement replied that Mr. Hamdan could raise that argument, which he predicted would fail, before the military commission itself. There was no reason "why that claim has to be brought at this stage in the procedure," he said.
Justice Scalia then intervened, observing that "I thought we established earlier" that "in the normal criminal suit, even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately." Rather, "it's adjudicated at the conclusion of the proceeding," the justice continued.
"Well, of course, that's true," Mr. Clement said.
Justice Scalia went on: "We don't intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding's terminated, normally."
"That's exactly right, Justice Scalia," Mr. Clement said.
Justice Kennedy objected. "Is that true?" he aside. "If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial before the court intervenes to determine the authority of the tribunal?"
"With respect, Justice Kennedy, this isn't 'a group of people,' " Mr. Clement replied. "This is the president invoking an authority that he's exercised in virtually every war that we've had." . . . .
Mr. Clement asserted that the Detainee Treatment Act would allow a detainees to argue in federal court, after conviction by a military commission, that the commission's procedures were illegal or unconstitutional.
Justice Ginsburg then asked him to "straighten me out." She said, "I thought it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States."
"That is true, Justice Ginsburg," the solicitor general answered.
Mr. Hamdan's lawyer, Mr. Katyal, appeared to get considerable traction with his argument that the crime of conspiracy, with which Mr. Hamdan and nine other detainees awaiting military commissions have been charged, is not an appropriate crime for trial before a military commission. If a majority agrees, this might provide a narrow way of resolving the case.
The Miami Herald notes that:
Hamdan's lawyer, "Katyal, [is] a Georgetown University Law Center professor who was a clerk for Justice Stephen Breyer a decade ago."
The justices seemed especially intrigued with the nature of the crime alleged, conspiring with al-Qaida. At least four justices asked questions related to the charge.
Katyal called the conspiracy charge so broad and unfocused that "a little old lady in Switzerland who donates money to al-Qaida, and that turns out to be a front for terrorist acts ... might be swept up within this broad definition. That's why international law has so rejected the concept of conspiracy."
Katyal's hypothetical doesn't come from nowhere. He is quoting a Justice Department lawyer's statement of the government's position on the issue.
Footnote on Republican Malfeasance.
As an aside, the Senate proponents of the Detainee Treatment Act, Senators Graham and Kyl, inserted fake testimony into the Congressional record in a manner contrary to customary practice regarding prepared remarks which make clear their "non-live status", which no one else in Congress was privy to until after the bill passed, in an effort to make legislative history, implying that the fake testimony was a basis for votes on the legislation. Senator Brownback, who was given a cameo role in the fake testimony, even lied to a reporter claiming that it had taken place. CSPAN, of course, proved otherwise. Page 23 of their amicus brief is particularly damning, where it states "the Congressional Record is presumed to reflect live debate except when statements therein are followed by a bullet . . ", and also claimed in the brief that Congress had the testimony available prior to the vote.
In my opinion this is grounds for Jefferey A. Lamken and Sheila J. Kadagathur, at Baker Botts, who signed the brief, to be disbarred if they indeed did know that, as C-SPAN revealed, these were not live comments. Misrepresentations, even by strong implication, to a tribunal regarding a material matter before the U.S. Supreme Court, is a serious violation of the rules of professional conduct. Likewise, Senators Graham and Kyl should face ethics charges in the Senate for this misconduct. Somehow, I am not surprised to see more Republicans make shit up to support the war on terrorism and to attempt to deceive the U.S. Supreme Court.
Now, we wait. Also, given the administration's past history in these cases, it is likely to try to change its policies, or seek legislative relief to change the playing field, given the perception that it may lose in the U.S. Supreme Court.
Big Hat Tip to How Appealing for locating the stories linked.