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 approval. However, he does make one statement which is extremely dangerous, and frankly, at the heart of this matter:

] There is no rational fear here that the president is
] rounding up political enemies or suspect ethnic classes
] under the cover of phony hostilities; there are
] exceedingly few persons being held as unlawful
] combatants, and there is a reasoned basis for each of
] those detentions - indeed, even the Second Circuit
] majority conceded that Padilla appeared to be a national
] security threat.

This isn't about whether the present circumstances are "ok." We are creating a NEW legal precedent here that will stick with the American legal system for the rest of eternity. This is a framework, not a circumstance. We must ask whether the framework we are creating will work well in ALL circumstances, and not simply the specific case we have before us today.

The simple fact is that the under this framework the President could declare his electoral opponent an enemy combatant and throw him in Cuba. The fact is that were this to occur there would be absolutely NO legal recourse that could be taken. You could not argue for the release of the prisoner. You could not challenge the prisoner's designation as an enemy combatant. There is no one to argue to. There is no one with the authority to reverse the decision. There is absolutely nothing that you could do. The only avenue available for redress would be to impeach the president, and then pardon the prisoner once the president has been replaced, IF you could get a two thirds majority in the Senate.

The question is not whether we imagine such a situation as being likely. The question is whether such a situation is possible.

The question is, do such situations arise in human societies? Yes. They do. Look at what is going on in Iran right now. What is it that makes the United States different from these societies? The answer is that we have created a legal framework in which such scenarios cannot unfold because such an absolute, unchecked power is never placed in the hands of one individual. To accept these designations is to break that framework. To break the framework is to eliminate the difference. Once the difference is eliminated it is only a matter of time...

Andrew C. McCarthy on Jose Padilla on National Review Online