One of Ours

How you feel about the indefinite military detentions of Yaser Esam Hamdi and Jose Padilla will turn largely on what you think life will look like when it starts. By "it," I mean the moment at which fundamental liberties are curtailed by well-meaning governments and the legal system becomes unable to offer relief. Never having seen "it" happen in my lifetime, I'm hardly an expert. German Jews who survived the Holocaust will tell you that it's hard to know at exactly which instant you've crossed the line into "it." Fred Korematsu, a Japanese American detained during World War II, knows what "it" looks like, and he says it looks a bit like this. Professor Jennifer Martinez, Padilla's oral advocate at the Supreme Court this morning, says we are at the line separating "it" from "not it" right now, today—as the court stands poised to decide whether "the government can take citizens off the street and lock them up in jail forever."

The crucial issue for both Hamdi and Padilla is whether the courts will hand the president the power to detain alleged "enemy combatants" indefinitely, without charges or access to counsel...

...a criminal statute, 18 U.S.C. Sec. 4001(a)—which bars the detention of citizens without express congressional authority—means "the President does not have the power ... to detain as an enemy combatant an American citizen seized on American soil."...

...Ginsburg asks whether the government has any justification for trying certain defendants (John Walker Lindh, Zacarias Moussaoui, James Ujaama) and locking up others. Clement replies that those terrorists had "no intelligence value," so it was fine to put them into the judicial system. (The notion that the government will learn more from interrogating Hamdi, a Taliban foot soldier, than Moussaoui, a man who ate ice cream with ranking al-Qaida members, is so preposterous that it cannot just be left on this page to die.)...

...Clement adds that Hamdi may not have had a full military proceeding, but he was subject to two thorough military screenings, one on the battlefield and another in Guantanamo, which would have screened him out were his claims of innocence true. He adds (I swear), "The interrogation process also provides an opportunity for him to say this has all been a mistake." When Ginsburg asks, "Doesn't he have a right to tell some tribunal, in his own words ..." Clement concedes he "does have a right to say, in his own words. ..." And Souter, drier than a dirty martini, asks: "When? During interrogation?"

O'Connor speaks, it seems, for much of the court when she points out that this "war" we are in may last forever. "We've never had a situation where this war could last for 25 years of 50 years."...

...Congress, after all, gave the president carte blanche to conduct this endless war as he sees fit. And according to the president, the courts can do nothing now but get out of his way...