updated 4/29/2004 10:32:55 AM ET 2004-04-29T14:32:55

Posted Wednesday, April 28, 2004, at 4:22 PM PT- 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. The president says he already has that power anyhow: The Constitution gives it to him in his role as commander in chief , and Congress gave it to him, right after Sept. 11, when it authorized him to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks." The president says this isn't the beginning of "it." This is the middle of a war.

Hamdi, as you'll recall, was captured on the battlefield in Afghanistan with an AK-47 in his hand. Transferred to Guantanamo, he was moved to a military brig when it became clear he was born in the United States. No charges have ever been filed against him, he only recently met with his attorney, and his case has been a protracted slap-fight between the district court judge and the 4th Circuit Court of Appeals , which ruled most recently that the president's powers rightfully permit him to detain Hamdi indefinitely. Padilla, a former gang member and convert to Islam, allegedly conspired with high-ranking al-Qaida members to detonate a "dirty bomb" against U.S. targets. He was picked up in a Chicago airport, held as a material witness in New York, then labeled an enemy combatant and moved to a Navy brig, where he has been confined ever since. Padilla fared better in the appellate courts than Hamdi, with the 2nd Circuit Court of Appeals ruling that 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." They all appealed, and each case was given an hour this morning for argument.

Frank Dunham, on behalf of Hamdi, says that seeking a writ of habeas corpus from a court can hardly violate the notion of separation of powers since the whole purpose of habeas relief is to "challenge extrajudicial executive detentions."

Justice Sandra Day O'Connor asks Dunham for precedent involving U.S. citizens who are enemy combatants, and he offers up Ex Parte Quirin , a World War II case involving eight Nazi spies (one of whom claimed to be an American) who snuck into the United States with the intention of blowing things up. The Quirin court held that a military commission, as authorized by the president, was sufficient due process and the spies were not entitled to habeas relief.

Dunham points out that the words "enemy combatant" have no legal meaning; they are "not defined in the case law, not defined by statute." Justice Antonin Scalia breaks in to say that they are, nevertheless, "English words, meaning someone who is combating. ..." O'Connor queries whether habeas relief is available to every American citizen caught fighting for the enemy. Dunham replies that this assumes Hamdi was fighting for the enemy, which has never been proved in a court.

Justice Ruth Bader Ginsburg asks whether there are military regimes to determine whether someone was indeed fighting for the enemy. Dunham says such military proceedings exist but were never used for Hamdi. Chief Justice William Rehnquist asks: "What evidence are you going to get now about what happened on the battlefield?" And Scalia adds: "He wasn't even captured by our forces. You want us to run down members of the allied forces?" "You want us to send a Gulfstream over with 10 witnesses?" adds Justice Anthony Kennedy. "We are not living in World War II," says Dunham. "We have fax machines, phones, pictures."

"What if we get a deposition from an American colonel?" asks Scalia. Would that be enough? "We would not accept it without Hamdi having a right to be heard," responds Dunham. "He has never been allowed to give any kind of explanation of his side of the story."

Justice David Souter joins other justices in wondering whether a military-type trial would suffice for Hamdi. Dunham says yes. When Justice Stephen Breyer asks what the courts should do if the government refuses to hold a military-style hearing, Dunham responds that the court should undertake to do a similar inquiry itself, as District Judge Robert Doumar attempted to do in the Hamdi case before the 4th Circuit slapped him into last week.

When Dunham argues that Congress never authorized these detentions, O'Connor stops him to say Congress did pass the authorization to use military force. "It doesn't have the word 'detention' in it," says Dunham. "It's a declaration of war."

"Surely the president has the right to kill them," responds Scalia. "Is it conceivable that he has the right to kill them but not to detain them?" (Listen here to this exchange.)

Kennedy contends that subsumed within that declaration of war is authorization for the president to "use his judgment." "It was not a list of things he can do."

"If that means he can impose executive indefinite detention, he can lock people up all over the country, for as long as they might live," replies Dunham. Justice John Paul Stevens asks whether Hamdi questions any of the facts in the so-called "Mobbs Declaration"—that's the bare two-page filing by the adviser to the undersecretary of defense policy, who wasn't in Afghanistan, asserting that the government needs to detain Hamdi because he's a bad guy.

Dunham replies that he was only recently allowed to speak to his client for the first time and that the government claims Hamdi's communications are classified, so he can't tell the court anything beyond the fact that there is "substantial dispute" between Mobbs' view of the facts and Hamdi's.

Deputy Solicitor General Paul Clement represents the president today, and he points out right away that one of the reasons the government is authorized to hold Hamdi is to keep him from "rejoining the battlefield" while we still have 10,000 U.S. troops in Afghanistan.

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.)

Kennedy wonders if there's any literature on how long you can interrogate a guy before it stops being fruitful. And Souter asks what the court should do with Section 4001, the one that prohibits locking up Americans without congressional authorization. Clement says Congress did authorize this after Sept. 11, and Souter wonders whether that authorization, like the Wrigley's gum, just lasts an extra, extra, extra long time. Souter seems to want the court to order Congress to refine or supplement the original authorization.

Breyer points out that the authorization contains the words "necessary and appropriate," which, like the Constitution and the Magna Carta, serve to limit the president's claim that he can do absolutely anything he wants whenever he wants. (Listen here ).

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." And Stevens asks whether the president's power to indefinitely detain includes the power to torture. Clement observes first that there are international conventions prohibiting torture (there are also international conventions prohibiting what we're doing in Guantanamo, but we just say those don't apply) and, helpfully, that torture results in unreliable information. (Presumably once we master really effective torture, the president can order that, too.)

Souter suggests he's just not very comfortable with the government's main assurance: "Don't worry about the timing question. We'll tell you when the war is over." And Frank Dunham offers a fiery rebuttal in which he claims Clement is a "worthy advocate who is able to make the unreasonable sound reasonable." He adds that the government's claim that we should trust them is exactly why the Great Writ exists: because we don't trust them. The passion seems to startle the justices, who remain silent throughout. Dunham surely knows they don't generally take to all this emotionalism. But he's not arguing to the court anyhow. This part is for you. (Listen here .)

Something odd happens to the court in the 52 seconds between Hamdi's case and Padilla's. Whether the justices have spent their outrage over the absence of any adjudicatory process in the first hour; or whether, like Breyer, they find Padilla more distasteful because he's a bona fide "ticking time bomb"; or whether the nagging jurisdictional issues in this case (Padilla may have improperly filed for habeas relief in New York courts and may have improperly named Donald Rumsfeld as his custodian) drain it of any real urgency, there's a shift in the mood. The justices spend an enormous amount of time fretting over jurisdiction and almost none worrying that this guy has had no due process of law.

Ginsburg asks Clement for some limiting principle on executive powers in wartime. "Supposing the executive says mild torture will help?" Clement responds with the only credible answer he can give: "Just because executive authority in wartime can be abused doesn't justify limiting it." (Listen here .)

Jennifer Martinez, a professor at Stanford Law School, represents Padilla. She's careful to say the president is not in peril of losing his power to seize our enemies; he just can't have unbridled discretion to hang onto them forever. She tries to distinguish Padilla, who was "not on the verge" of committing a terrorist act but merely part of some future plot. Stevens wants to know how courts can tell when someone is "about to be engaged in a plot."

Paul Clement closes by saying that the executive war power can't be limited to the battlefield. To constrain the president in that way would preclude him from apprehending men here at home, like Padilla, "a latter day-citizen version of Mohammed Atta." Clement, to paraphrase Dunham, almost makes this sound reasonable. 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.

Is there any role at all for the courts, beyond endorsing Congress' blank check? Most of the justices seem to crave something—whether it's crafted by them or Congress—to mediate between the president and words like "enemy combatant" and "forever." Whether they can come up with that something is the only question left to answer. The alternative is to accept the president's claim that we should just trust him. And then wait for "it" to begin.

Dahlia Lithwick is a Slate senior editor.

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