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Ex Parte Quirin dealt with Nazi saboteurs, at least one of whom was a U.S. citizen. "Enemy combatants," said the Court in that case, are either lawful - for example, the regular army of a belligerent country - or unlawful - for example, terrorists. When lawful combatants are captured, they are prisoners of war, POWs. As POWs, they cannot be tried (except for war crimes). They must be repatriated after hostilities are over, and they only have to provide their name, rank, and serial number if interrogated. Clearly, that's not what the Justice Department had in mind for Mr. Hamdi.

Unlawful combatants are different. When unlawful combatants are captured, they can be tried by a military tribunal. That's what happened to the Nazi saboteurs in Quirin. But Hamdi has not been charged, much less tried. Indeed, the president's executive order of November 2001 excludes U.S. citizens from the purview of military tribunals. If the president were to modify his order, the Quirin decision might provide legal authority for the military to try Hamdi. But the decision provides no legal authority for detaining a citizen without an attorney solely for purposes of aggressive interrogation. The Ex-parte Milligan decision is still the controlling precedent on the question of the writ of habeas corpus.

All persons have the inalienable right to have a court determine whether their detention is lawfull--especially including the issue of whether or not they are properly classified as "enemy combatants" or "prisoners of war." The key point to the Quirin decision is that the court decided that the Nazi agents were in fact properly classified as illegal combatants. In so deciding, the Court explicitly affirmed its authority to review any writ of habeas corpus that alleges that a person is wronfully held as either a POW or an illegal combatant.

Moreover, the Constitution does not distinguish between the protections extended to ordinary citizens on one hand and unlawful combatant citizens on the other. Nor does the Constitution distinguish between crimes covered by the Fifth and Sixth Amendments and terrorist acts. Still, the Quirin Court justified those distinctions, noting that Congress had formally declared war and thereby invoked articles of war that authorized the trial of unlawful combatants by military tribunal. Today, the situation is different. We've had virtually no input from Congress: no declaration of war, no authorization of tribunals, and no legislative suspension of habeas corpus.