On the recordNovember 30, 2011
So our courts have recognized that during a time of hostilities, the executive branch has the authority to detain an American citizen who is helping the enemies of the Nation. The question is, Does the Congress want to change that for the first time ever? I would like to add something that my good friend from Rhode Island got me thinking about. I have always tried to explain indefinite detention, what are we trying to do here? Clearly, in war, there is no requirement to let the enemy prisoner go back to the fight after the passage of time. We don't want to let any enemy prisoner go back to the fight because that makes no good sense. The problem with this war is, there is no definable end. That is the reason we have a habeas review, because we will never know when hostilities are over. So an enemy combatant determination could be a de facto life sentence, and that is why our Supreme Court said we want a judicial check on the executive branch. So every enemy combatant will have their day in Federal court, and the government has to prove, by a preponderance of the evidence to an independent judge, that the decision to hold this person is warranted under the law. That was what the Hamdi case was about. I think that makes sense because it will not be the traditional war; it will be a war without a definable end.…





