WHOOPS!!
Hamdan v. Rumsfeld transcript

JUSTICE STEVENS: May I just ask this, to clarify? When they [Congress] do take some jurisdiction of some habeas corpus claims, do you defend that, in part, as a permissible exercise of the power to suspend the writ, or do you say it is not a suspension of the writ?
GENERAL CLEMENT: I think both, ultimately. I mean, I don't think --
JUSTICE STEVENS: Well, it can't be both. [Laughter.]
GENERAL CLEMENT: Well, I -- I don't see why I can't have alternative arguments here, as for anywhere else, Justice Stevens. We think that Congress, in this action, did not do anything that triggers the suspension of the writ. But if you think that --
JUSTICE STEVENS: Well, that --
GENERAL CLEMENT: -- it did, I think that --
JUSTICE STEVENS: -- that's your position, they did not suspend the writ. You're not arguing that it's a justifiable suspension of the writ.
GENERAL CLEMENT: Well, I think the terms of the Suspension Clause would be satisfied here because of the exigencies of 9/11. If the question is, Am I taking the position that Congress consciously thought that it was suspending the writ? then I would say no.
JUSTICE STEVENS: Okay.
GENERAL CLEMENT: And if you think, in order for there be to a -- to be a valid suspension, Congress has to do it consciously, then I think you could see why the arguments are mutually exclusive. My view would be that if Congress, sort of, stumbles upon a suspension of the writ, but the preconditions are satisfied, that would still be constitutionally valid. So, I think that may be the disagreement.
JUSTICE SOUTER: Isn't there a --
GENERAL CLEMENT: I mean --
JUSTICE SOUTER: Isn't there a pretty good argument that a suspension of the writ of Congress is just about the most stupendously significant act that the Congress of the United States can take? And, therefore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?
GENERAL CLEMENT: Well, a couple of things, Justice Souter. I would agree with you if what we were talking about is suspending the right as to citizens within the Continental United States, but all Congress did here is restore the law to the understanding of the law that had prevailed for 200 years. Now, this Court obviously took a different view --
JUSTICE SOUTER: If we have to --
GENERAL CLEMENT: -- in Rasul.
JUSTICE SOUTER: -- get to the issue, in accordance with Justice Breyer's question, whether or not the writ of habeas corpus was suspended, you are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?
GENERAL CLEMENT: I think at least if you're talking about the extension of the writ to enemy combatants --
JUSTICE SOUTER: The writ is the --
GENERAL CLEMENT: -- held outside --
JUSTICE SOUTER: The writ is the --
GENERAL CLEMENT: -- the territory of the United States --
JUSTICE SOUTER: Now, wait a minute. The writ is the writ.
GENERAL CLEMENT: Okay.
JUSTICE SOUTER: There are not two writs of habeas corpus for some cases and for other cases. The rights that -- the rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus. And it seems to me that the position you have taken is that if, at the end of the day, we have to reach the question that Justice Breyer described, the answer to that question may be, "Yes, the writ of habeas corpus was suspended by inadvertence. Congress did not intend to do it."

WHAT?? WE ACCIDENTALLY SUSPENDED THE WRIT OF HABEAS CORPUS? OH MAN!! THAT'S NOT GOOD