Thats the story and in my view they should have stuck to it and seen it through. At worse, SCOTUS rules against them. Padilla can still be tried. And if the American people are dissatisfied with the outcome, Congress can pass laws regarding citizens who make war on Americans on the battlefield of New York or Afghanistan.
Personnally, I don't think it's necessary. Consider this. A group of citizens joins Al Qaeda. They make war on America. If they are simply criminals they can not be shot on sight. They have to be Mirandized and taken with minimal force. They then get court appointed attorneys paid for by loyal citizens. It's ridiculous.
And now consider this non hypothetical. An American citizen known to be in a car in the Sudan with fellow jihadists was killed by CIA guys firing a missile from a drone. According to the argument that he was a US citizen not engaged in direct conflict and thus a criminal entitled to rights, they committed murder. You think the SCOTUS will address that? I don't. So, one of two things is true. the rights of American citizens are dependent on geography or somebody is FOS.
That about says it all. This lawyer agrees with you, FWIW. :)
another very good example - we can't be at war with these people in the Sudan, but at OHare airport we aren't.
the whole thing is screwed up.