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My guess is that the high Court will split on Hamdi and Padilla, upholding the military detention of the former but not the latter. In other words, a decision that will synthesize the opinions in Ex Parte Milligan and Ex Parte Quirin on the subject of American citizens and military authority. ( Hamdi clearly was not a civilian, captured while bearing arms on a battlefield, Padilla was arrested at O’Hare airport in Chicago- unless the Justices wish to extend civilian trials to all POWS captured in future wars, Hamdi is going to stay in the hands of the Pentagon. Padilla could go either way depending how the Justices view al Qaida membership…..or they may just horse-trade on votes and rationalize the difference ).

The Solicitor – General missed an opportunity to more heavily ground his argument in the fact that a Congressional resolution to use force and a declaration of war are legally indistinct under international law and the Constitution. The difference in wording is strictly for political consumption and has no bearing on the war powers of either the Executive or the Legislative branches.

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