So, we agree on foreign enemy combatants, Jonathan. Now, to your comments re home-grown enemy combatants. I wasn’t aware that these two individuals had been detained beyond about 2 years, which is not forever. Indeed, it’s not even that long in the context of other wars. It’s always dangerous when the Court gets into hypotheticals. It has enough difficulty ruling on actual cases.
But there seems to be some confusion about the facts. The Government agreed that Hamdi had recourse to the U.S. courts to have his habeas petition heard. The Government also agreed that it was obligated to place proof before the Court on the issue of whether Hamdi was an enemy combatant. The Government’s dispute was on the issue of whether its presentation of the affidavit with hearsay evidence foreclosed further review. I don’t see any silly putty being stretched here, except by Court. Dare I say, I disagree with Antonin Scalia, whose comments don’t appear to be much on point. The Government’s position was far more “liberal” than I believe was required. But the Court went quite far today, in going much beyond it. Indeed, for all intents and purposes, the Court determined that citizen and foreign enemy combatants will be treated alike in terms of access to civilian courts. This had been one of the few remaining areas in which the Court had previously given deference to the other branches. This is the beginning of the end of that.