The Bernoulli Effect

Beg to disagree. While the President may have the authoity to suspend Habeus Corpus, he has not done so. The civilian courts are functioning, and this guy was not "caught on the battlefield." Why shouldn't the precedent of Ex parte Milligan (1866) apply?

I seriously worry about someone like a "President Hillary" abusing such powers. Remember when the Oklahoma bombing occurred, and the President fingered "Right-Wing Hate Radio?" Imagine Limbaugh being held in a Naval brig, incommunicado! Some might think that a good thing...and there lies the danger. Who's next?

I'll be the first to admit I'm not an attorney, and I share your concern about potential abuses.
It's certainly true that once a small step is taken, it's often impossible to go back.

But I think Malkin highlights a good point: that Congress itself had passed a resolution speaking to the issue, relative to the current war on terror.

And while I didn't mean to offer a legal judgment on the suspension of the Habeus Writ, I did want to make the point that the provision for suspension is just as much a part of the Constitution as the Bill of Rights, and therefore should be accorded a non-hysterical consideration.

The president does not have the authority to suspend habeas corpus. Only Congress has such authority. See Article I, section 9.

The president can ask Congress to do so, but has not done so, instead holding that he has the unilateral war powers authority to designate a citizen an "enemy" who can be held indefinitely.

It's very sensible to suspend habeas corpus for Americans who are members of al-Qaeda or its affiliates. It is negligent of both President Bush and the Congress for not having done so.

I stand corrected, and of course it is right that one individual should not have that power. But, could that suspension, once granted, be exercised solely at the President's discretion (i.e., Group A but not Group B)?

I'm not sure. I don't know enough about the subject. I imagine that Congress' suspension of the right could be narrowly tailored, and have certain review requirements built into it as well (e.g., obligating the president to report to Congress on the number and status of people denied habeas corpus).

As I elaborated in comments at my blog, the majority opinion of the Supreme Court as expressed in Hamdi v. Rumsfeld, on page 11, is clearly and unequivocally stated:

"There is no bar to this Nation's holding one of its own citizens as an enemy combatant."

They support this assertion with case law such as Quirin and In re Territo. Such detention is a war measure, and not punitive, and thus not subject to "charges". Criminal behavior is incidental.

Would it not be perverse if citizens could be enemy soldiers, and if captured, had to only be held on criminal charges, that might have them being released after (possibly) short terms before the termination of hostilities? That makes no sense.

It's only AFTER hostilities cease, and all normal POWs get released, does the issue of criminal behavior due to his status as a citizen come into play, with the possibility of charges of Treason or Sedition coming into play THEN.

We all want the Constitution to be followed -- and the Supreme Court found in Hamdi (pages 7-17 are illuminating) that as a citizen, absent the outright suspension of habeus corpus by the government (which it can do, but hasn't...yet), "due process of law" is required to examine the merits of the petition of the detained citizen.

BUT, "due process" does NOT equate to full access to civilian courts. The Supreme Court majority opined that all that is required is a simple hearing, even by a military tribunal, and even with a presumption in favor of the government's case, simply to determine if the government's categorization of the person as a hostile agent is reasonable and not a case of mistaken identity, or of a journalist, for example, in the "wrong place, wrong time."

The likes of Judge Floyd seem not to believe we are in a war, even with a Congressional Authorization. Technicalities, such as location of capture, should be (and are) irrelevant.

Floyd is clearly ruling contrary to the guidelines of the recent Hamdi decision, and all precedent in the law. He should have ruled simply that a habeus hearing be held by a military tribunal -- and should not have demanded that formal charges be brought in civilian courts.