Something odd happens to the court in the 52 seconds between Hamdi's case and Padilla's. Whether the justices have spent their outrage over the absence of any adjudicatory process in the first hour; or whether, like Breyer, they find Padilla more distasteful because he's a bona fide "ticking time bomb"; or whether the nagging jurisdictional issues in this case (Padilla may have improperly filed for habeas relief in New York courts and may have improperly named Donald Rumsfeld as his custodian) drain it of any real urgency, there's a shift in the mood. The justices spend an enormous amount of time fretting over jurisdiction and almost none worrying that this guy has had no due process of law.
Ginsburg asks Clement for some limiting principle on executive powers in wartime. "Supposing the executive says mild torture will help?" Clement responds with the only credible answer he can give: "Just because executive authority in wartime can be abused doesn't justify limiting it." (Listen
Jennifer Martinez, a professor at Stanford Law School, represents Padilla. She's careful to say the president is not in peril of losing his power to seize our enemies; he just can't have unbridled discretion to hang onto them forever. She tries to distinguish Padilla, who was "not on the verge" of committing a terrorist act but merely part of some future plot. Stevens wants to know how courts can tell when someone is "about to be engaged in a plot."
Paul Clement closes by saying that the executive war power can't be limited to the battlefield. To constrain the president in that way would preclude him from apprehending men here at home, like Padilla, "a latter day-citizen version of Mohammed Atta." Clement, to paraphrase Dunham, almost makes this sound reasonable. Congress, after all, gave the president carte blanche to conduct this endless war as he sees fit. And according to the president, the courts can do nothing now but get out of his way.
Is there any role at all for the courts, beyond endorsing Congress' blank check? Most of the justices seem to crave something—whether it's crafted by them or Congress—to mediate between the president and words like "enemy combatant" and "forever." Whether they can come up with that something is the only question left to answer. The alternative is to accept the president's claim that we should just trust him. And then wait for "it" to begin.