Domingo Soto: Because Freedom Isn't Dumb

BATTLEFIELD CHICAGO
...[T]he Bush Administration has insisted on treating [Yaser] Hamdi and [Jose] Padilla as soldiers. Labeling them "enemy combatants," the administration asserts that they may be held without any legal process whatsoever until the "war on terror" is over....

...(In upholding the detention of Hamdi) the Fourth Circuit's ruling was frighteningly broad. But what the government was asking the Second Circuit to do in the Padilla case was still more dramatic: to sanction the indefinite detention of an American citizen who was not captured on a foreign battlefield, but rather picked up in Chicago. The government was arguing, in short, that the one fact that the Hamdi court relied upon was one fact too many.

Although the district court that heard Padilla's habeas corpus request ruled that the government should have to provide "some evidence" in support of its position that Padilla was an enemy combatant, the government disagreed. In its view, no fact, no evidence, and no legal process should be required.

The Second Circuit ruled against the government on broader grounds than did the district court, and thus did not discuss the government's burden of proof. Yet its opinion was in many ways a narrow one, which in no way challenged the government's key underlying claims. It did not, for example, question the Bush Administration's assertion that the "war on terror" is a literal war, unlike, for instance, the Cold War or the War on Drugs.
(FINDLAW COMMENTARY)