In case you couldn't tell from my last post, I've been working pretty hard lately. I spent 30 of the past 36 hours in the office, and what I've eaten there isn't worth inconveniencing the electrons necessary to describe it to you.
Which is not the worst situation imaginable, because it gives me an opportunity to remind myself and my readers that when I'm not eating, I'm still a lawyer. And today the Supreme Court heard among the most important arguments it's heard in maybe 50 years. You can get the Readers' Digest version from Dahlia Litwick at Slate (she's one of the better non-academic legal commentators around, by my lights). For a more complete picture of the cases, you can get the briefs and lower court decisions from Findlaw (there are two cases involved, Rumsfeld v. Padilla and Hamdi v. Rumsfeld).
The reason these cases are important is because of the precedent being relied on in the arguments, which comes from World War II. The key case, Ex Parte Quirin, involved a bunch of Nazi spies who were tried before a military tribunal without the protections afforded to criminal defendants under the Constitution. The catch is, one of these Nazis -- a man named Haupt -- claimed to be a naturalized American citizen. This was in 1942. The Nazis were starting to get pretty good at killing Americans on the battlefields of Europe, and FDR and J. Edgar Hoover were going to make an example of these men. And the Supreme Court, in a moment of historic cowardice, caved to the Executive's will, saying:
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.... We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.
Ex Parte Quirin, 317 U.S. 1, 37-38, 45 (1942) (internal citation omitted). (You can read more about the real-life travesty of Quirin here. In fact, the quote above was published months after Haupt and his co-petitioners were already dead.) So the man known to history as Petitioner Haupt, the American Nazi, the John Walker Lindh of the Third Reich, never saw an American courtroom. A military tribunal convened under orders of the President tried and convicted him, and he went to the electric chair. And that, as they say, was that.
Until today. Padilla and Hamdi, unlike Haupt, haven't had a military tribunal. Padilla at least hasn't aligned himself with any government against whom the United States has declared war. They have barely had access to counsel. They've been held without bail, without charges, with hardly any contact with the outside world, for about two years apiece. The only basis for their imprisonment is that the President has decided they're out to hurt Americans. Frankly, the President is probably right. But he's never had to prove it to anybody, not even a military tribunal. And the question in these cases is whether he should even have to bother.
Today, in America, even a person who the whole world agrees should be locked up gets a chance to stand up and try to convince the world it's wrong. Depending on how the Supreme Court rules on the cases it heard today, that may not be true much longer. Fifty years from now, the "war on terror" -- like the war on fascism -- will be a chapter in a history book, but there will be some new menace threatening whatever way of life we've settled into by then. Maybe you'll have voted for the President who's in office then, and maybe not. But a court is going to be citing the opinions the Supreme Court writes in these two cases to decide whether the President can unilaterally, indefinitely imprison the grandchild of somebody who is alive today. The prisoner (or, in the genteel world of appellate argument, the "detainee") will likely be a genuinely dangerous individual who deserves incarceration. But maybe he (or she) will just be someone who strongly disagrees with the President's policies -- say, foreign policies in a time of war -- and has spoken out against them.
These cases aren't about terrorists. They aren't about dirty bombs or sleeper cells or enemy combatants. They're about law, plain and simple. Either there is law or there isn't. If the President can lock you up because he thinks it's a good idea, there just isn't any law. Give Padilla and Hamdi their day in court, let them try to persuade us they deserve their freedom, then prove them wrong. They'll most likely end up in stir anyway. But it will be because the person trying to put them there proved to a disinterested party that that's where they belong.
I went to law school with some astonishingly smart and genuinely good people, a few of whom are who are now clerking for the Justices that will be deciding these cases. Most if not all of them are married or engaged. I hope that tonight, they're thinking of the grandchildren they'll have someday.
See, 
The world of twenty-something lawyers in New York is abuzz with murmurings of discontent over what is perceived to be a