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September 22, 2004



IANAL, but I read Rasul, Hamdi and Padilla.

I think that your analysis is about right. I have some concerns with both Hamdi and Padilla (notably issues of moving prisoners to avoid habeus petitions or keeping their location hidden and the fact that Hamdi would be guilty until proven innocent).

But I would add something else: One thing notably different here si the lack of any legal recourse. Although, like Scalia, I dislike the court's ruling in Quirin and fear that it undercuts our rights (especially when "the enemy" is invisible and nebulous), it is worth noting that unlike in Quirin, Padilla has had no reasonable opportunity for trial, nor did Hamdi, nor have the detainees in Guantanamo. For this reason, I do not think that there is any possibility that the Supreme Court will hold that Habeas does not apply to Padilla.

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