New York Times on the Hamdi, prescription Guantanamo cases

The Hamdi opinion.

Five of the justices rejected the argument put forth by Padilla’s lawyers during the oral argument, that Congress did not authorize the detention of enemy combatants. These Justices said that Congress’ authorization for the war was broad enough to authorize the detentions. Even so, the Court has confirmed that there must be some due process, and that an executive “I told you so” is not enough, to continue to detain someone as an enemy combatant, whether on or off U.S. soil. The next question is, what process is due? O’Connor, writing for the plurality, suggests that hearings before military tribunals may be enough. There, rules against hearsay are bent, or non-existent. The standard or proof would be less than beyond a reasonable doubt, but more than the “some evidence” standard advocated by the government and used in administrative proceedings. At least, the accused gets access to a lawyer.

Many questions remain. How long can someone be detained if they are an enemy combatant? Until terrorism is vanquished from the face of the earth, or just until the military activities in a certain location are completed? What remains to prevent our government from simply leaving people off the roles, to hide them from the Red Cross, and scare them into thinking that no one knows whether they are alive or dead, or tortured, so that they will confess to anything?