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QUESTION: Thank you, Mr. Clement. Mr. Dunham, you have four minutes remaining. REBUTTAL ARGUMENT OF FRANK W. DUNHAM, JR. ON BEHALF OF PETITIONERS MR. DUNHAM: May it please the Court. Mr. Clement is a worthy advocate and he can stand up here and make the unreasonable sound reasonable. But when you take his argument at core, it is, "Trust us." And who is saying trust us? The executive branch. And why do we have the great writ? We have the great writ because we didn't trust the executive branch when we founded this Government. That's why the Government is saying trust us is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that no man shall be deprived of liberty except upon due process of law. We have a small problem here. One citizen. We're not talking about thousands. One citizen caught up in a problem in Afghanistan. Is it better to give him rights or is it better to start a new dawn of saying there are circumstances where you can't file a writ of habeas corpus and there are • supremecourt.gov We have a small problem here. One citizen. We're not talking about thousands. One citizen caught up in a problem in Afghanistan. Is it better to give him rights or is it better to start a new dawn of saying there are circumstances where you can't file a writ of habeas corpus and there are circumstances where you can't get due process. I think not. I would urge the Court not to go down that road. I would urge the Court to find that citizens can only be detained by law. And here there is no law. If there is any law at all, it is the executive's own secret definition of whatever enemy combatant is. And don't fool yourselves into thinking that that means somebody coming off a battlefield because they've used it in Chicago, they've used it in New York and they've used it in Indiana. The Congress needs to act here. Justice Souter was on point when he was talking about the fact that we're two years into this thing and Congress leaves all the laws on the books that relate to habeas corpus and how a habeas corpus proceeding • supremecourt.gov The Congress needs to act here. Justice Souter was on point when he was talking about the fact that we're two years into this thing and Congress leaves all the laws on the books that relate to habeas corpus and how a habeas corpus proceeding is supposed to go. They leave the 4001(a) on the books that says no executive detention. But we ignore those laws, we don't enforce them. We don't require Congress to fill a gap. Congress tomorrow could take these military regs and they could say, this is the law, we authorize the executive to detain people and to give them hearings the way the military says, and then it would be lawful. But Congress hasn't done that and I respectfully submit, Your Honors, that until Congress does act, these detentions are not lawful. And I would respectfully ask this Court to step up to the plate and say so. QUESTION: Thank you, Mr. Dunham. The case is submitted. (Whereupon, at 11:19 a.m., the case in the above-entitled matter was submitted.) @ supremecourt.gov
April 19, 2025 at 3:16 PM