The Supreme Court released tape recordings of the oral arguments in Wednesday's cases on enemy combatants. The NewsHour with Jim Lehrer ran extended excerpts last night and put the recordings on its Web site.
Frank Dunham, Yaser Hamdi's attorney, had one of the most compelling and eloquent arguments of the session, explaining to the high court why allowing the government to incarcerate U.S. citizens without hearing would launch a frightening new chapter in constitutional history. To listen to Dunham, it's shocking that these arguments even need to be made.
Here he is: "[Deputy Solicitor General Paul Clement] is a worthy advocate, and he can stand up here and make the unreasonable sound reasonable. But when you take his argument at core, it is: 'Trust us.' And who's saying, 'trust us'? The executive branch. And why do we have the great writ?
We have the great writ because we didn't trust the executive branch when we founded this government. That's why the government saying 'trust us' is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that 'no man shall be deprived of liberty except upon due process of law.' We have a small problem here. One citizen -- we're not talking about thousands -- one citizen caught up in a problem in Afghanistan. Is it better to give him rights, or is it better to start a new dawn of saying there are circumstances where you can't file a writ of habeas corpus, and there are circumstances where you can't get due process? I think not.
I would urge the court not to go down that road. I would urge the court to find that citizens can only be detained by law. And here there is no law. If there is any law at all, it is the executive's own secret definition of whatever 'enemy combatant' is. And don't fool yourselves into thinking that that means somebody coming off a battlefield, because they've used it in Chicago, they've used it in New York, and they've used it in Indiana."