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I 100 percent agree with you that there needs to be a provision for citizens who are part of al Qaeda to be squeezed for info before they are tried for treason and hanged. What your post has not addressed, however, is what process is used to determine whether a citizen is al Qaeda in the first place. That is the crux of the issue here.

Honest question. Let me try to answer it the same way.

Let me start by saying that I have grown a deep distrust of the federal courts. I have little faith in their judgement and find it amusing when they claim that politics has no place in their business. The catch is that they are unelected and thus unaccountable when they ignore the constitution, precedent and 200 years of American jurisprudence.

The Padilla case is a tougher call than Hamdi but basically the same. Both aligned themselves with al Qaeda and waged war on America. I really don't give much weight to the geography of the situation because I don't believe that rights have borders.

Having said that, I think suspending Habeas in Padillas case is one of those bridges too far. But if you agree that Padilla is a case where he needed to be squeezed for intel then you already agree that at least some of his constitutional rights should be abridged. I'm with you there, it would be lunacy to afford Padilla his 5th Amendment rights if he had knowledge of possible attacks on America and terrorists on our shores.

Probably where we depart is that in a time of war, I place my trust in the elected CIC to make the proper judgement rather than the courts. That is the CIC's constitutional duty, to execute the wars that COngress authorises. A CIC who abused that trust would at least face the voters at the ballot box.

I'm not buying the hyperbole about a rogue President with a split Congress morphing into Benito Mussolini. Too many of us who would rather fight than bow to that nonsense if the Congress didn't act.

So, here's what I think. I would have no problem with Padilla being represented by a court appointed attorney in a Habeas hearing but I would be disappointed if he escaped military justice.

Thanks for your thoughtful response. Your distrust of the federal courts is one that I share. On the other hand, for important but sticky decisions that involve both fundamental Constitutional limits and profound national security issues, I think our best bet is to put our faith in checks and balances by involving at least two and ideally all three branches. I get concerned that rampant judicial activism is driving some people to advocate that we simply cut the judiciary out of the process (I understand that's not what you advocate), rather than undertake the more difficult task of reforming it.

The problem I have with relying solely on the CIC is that the CiC is rightfully concerned with immediate-term threats -- he is understandably going to weight those more strongly than very real, but more long-term threats to our Constitution. That's why we need the judiciary, more focused on long-term Constitutional issues, in there as a balance (plus some way to punish judges who are completely out of control).

On the Padilla case specifically, is it true that trying to squeeze him for information prior to trying him for treason violates his 5th amendment rights? Isn't it common for investigators in say, RICO cases, to interrogate prisoners (even though they always have the right both Constitutionally and physically to remain silent)? I'm not a lawyer, so you may be correct. I don't believe in prosecuting war as a merely criminal matter (ala the 'toon), but we still need a Constitutionally sound process for determining whether a citizen is a criminal or a combatant (and the executive branch simply declaring someone a combatant doesn't cut it). We also need to develop some metric for deciding when the WOT is (mostly) over, or as another poster pointed out these issues will become the new normal.

Overall, I think our president is doing the best he can in a difficult situation -- but it's up to us as citizens to communicate the correct balance between rights and security. Sorry for the ramble...I appreciate this thoughtful (rather than emotional) exchange. :)