So, I went digging for examples of commentators who support the enemy combatant designation. I don't really have time to read the DOJ's brief. In fact there is work I ought to be doing right now.

There is an essay reprinted in the articles section up at lifeandliberty.gov... The essay is interesting because the DOJ presents it as reflecting their opinions. However, it seems like the author does not really understand the basic facts of the issue very well. She says "Padilla still has the opportunity to make his case for liberty before a court, and the government still has to prove the validity of his detention."

No, the government does not have to prove the validity of his detention, and that is, in fact, the whole point of the discussion. Padilla is not making a case for liberty. A case is being made on his behalf (as cases must have standing to be heard) that he ought to be able to make a case for liberty.

She goes on to say "Should he prove incompetent to argue his petition, the judge could then appoint a special master to help find the facts, as legal journalist Stuart Taylor has recommended."

I figured I'd look up Stuart Taylor's column on the matter. He says: "The Bush preventive detention system has been implemented with little regard for the law, the rights of many detainees who turned out to be innocent, or international opinion."

So, I think I can safely say that the author in question is fundamentally confused. What is somewhat troubling here is that the DOJ trots her out as a spokes woman. I know the DOJ isn't similarly confused.

A commentator who at least does know what he is talking about is Andrew C. McCarthy. McCarthy prosecuted the mastermind of the 1993 WTC bombing. He has written a number of essays lately on the National Review site about civil liberties and the war on terror. He is opposed to the idea of a Jury trial for Bin Lauden (and seems a bit skeptical of the general concept of leaving things in the hands of Jurys). (Has he heard that we are planning to try Saddam in Iraq? I wonder what he thinks about that?) He offers a fairly strong defense of the Patriot Act. Unfortunately it is peppered with comments about dirty prosecutors being 1 in 5,000 and other forms of not too subtle disapproval of the general idea that there should be checks and balances. (I wonder what the ratio of innocent citizens to felons is overall in the population.)

He also offers up this essay on the enemy combatant issue. He argues that if the executive looses it's case terrorism defendants will be offered full rights to discovery and process. This is not at all what the question is here, and McCarthy knows it. The question isn't whether such detentions can occur. The question is whether the president can engage in such detentions without approval from Congress.

Viewed in that light most of his article reduces to nothing. He doesn't even touch the question of Congressional... [ Read More (0.3k in body) ]