But the appelate court ruling discusses what should be considered by the lower court- the Constitution and the precedents- that's what I found so informative. These points made by the Appelate court are what the lower court has to bear in mind when it next rules.
"The chief conclusion of the ruling seems to be that the judiciary traditionally defers to the Executive and Legislature on military matters."
But:
"In dismissing, we ourselves would be summarily embracing a sweeping proposition -- namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so. "
I think judge Wilkinson has pretty much told the lower court to give Hamdi a monitored lawyer to help prepare his habeas corpus plea- but not to grant it if the government shows that Hamdi was one of the group the president was authorized to use military force on under the congressional resolution.
"...if Hamdi is indeed an "enemy combatant" who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one. See, e.g., Quirin, 317 U.S. at 31, 37 (holding that both lawful and unlawful combatants, regardless of citizenship, "are subject to capture and detention as prisoners of war by opposing military forces"); Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946) (same); In re Territo, 156 F.2d 142, 145 (9th Cir. 1946) (same)."
This is what Hamdi's habeas corpus right is IMO: to have a court decide "if Hamdi is indeed an "enemy combatant"", with deference to the other branches, but to fact and logic too.
If the court does not believe he is an enemy combatant, they can and must set him free.
Wilkinson does seem to write that the matter should have been handled by the District Court. In reading the ruling, it is surprising that the District Court made such a poor ruling. It appears that the government may have contributed by not making a clear case.
The government has sought to file as an ex parte, supplemental attachment to its brief before this court "a sealed declaration discussing the military's determination to detain petitioner Hamdi as an enemy combatant." [...] This declaration is factual in nature. As such, it should come first before the district court, not the court of appeals.I'll have to admit I'm confused by the government's decision to consider Hamdi an enemy combatant, but not Walker.