Replies

The dissent is excellent:
"Sadly, the majority’s resolution of this matter fails to address the real weakness of the government’s appeal. Padilla presses to have his day in court to rebut the government’s factual assertions that he falls within the authority of the Joint Resolution. The government contends that Mr. Padilla can be held incommunicado for 18 months with no serious opportunity to put the government to its proof by an appropriate standard. The government fears that to do otherwise would compromise its ability both to gather important information from Mr. Padilla and to prevent him from communicating with other al Qaeda operatives in the United States.
While those concerns may be valid, they cannot withstand the force of another clause of the Constitution on which all three of us could surely agree. No one has suspended the Great Writ. See U.S. CONST. art. I, § 9, cl. 2. Padilla’s right to pursue a remedy through the writ would be meaningless if he had to do so alone.
I therefore would extend to him the right to counsel as Chief Judge Mukasey did. See Padilla, 233 F. Supp. 2d at 599-609. At the hearing, Padilla, assisted by counsel, would be able to contest whether he is actually an enemy combatant thereby falling within the President’s constitutional and statutory authority."

The two democrat living constitutionalist judges are in fantasyland, totally missing the point.

No one has suspended the Great Writ. See U.S. CONST. art. I, § 9, cl. 2. Padilla’s right to pursue a remedy through the writ would be meaningless if he had to do so alone. I therefore would extend to him the right to counsel as Chief Judge Mukasey did. See Padilla, 233 F. Supp. 2d at 599-609. At the hearing, Padilla, assisted by counsel, would be able to contest whether he is actually an enemy combatant thereby falling within the President’s constitutional and statutory authority.

Yup. Even the dissent disagrees with the government's position.