What "it" looks like

How you feel about the indefinite military detentions of Yaser Esam Hamdi and Jose Padilla will turn largely on what you think life will look like when it starts. By "it," I mean the moment at which fundamental liberties are curtailed by well-meaning governments and the legal system becomes unable to offer relief. Never having seen "it" happen in my lifetime, I'm hardly an expert. German Jews who survived the Holocaust will tell you that it's hard to know at exactly which instant you've crossed the line into "it." Fred Korematsu, a Japanese American detained during World War II, knows what "it" looks like, and he says it looks a bit like this. Professor Jennifer Martinez, Padilla's oral advocate at the Supreme Court this morning, says we are at the line separating "it" from "not it" right now, today—as the court stands poised to decide whether "the government can take citizens off the street and lock them up in jail forever."

The always engaging, enlightening, and entertaining Dahlia Lithwick deconstructs the oral arguments in the Hamdi and Padilla cases before the Supreme Court yesterday.

I think we are on the verge of "it," as the Court seems less inclined to worry about a decision that will undercut key provisions of the Magna Carta and the U.S. Constitution -- in fact, key reasons for the very existence of those documents -- than proscribing the Executive branch's powers in war time. The justices simply seem troubled by granting those powers "forever."

But here's my favorite bit.

"Ginsburg asks whether the government has any justification for trying certain defendants (John Walker Lindh, Zacarias Moussaoui, James Ujaama) and locking up others. Clement replies that those terrorists had 'no intelligence value,' so it was fine to put them into the judicial system. (The notion that the government will learn more from interrogating Hamdi, a Taliban foot soldier, than Moussaoui, a man who ate ice cream with ranking al-Qaida members, is so preposterous that it cannot just be left on this page to die.)"

I have been wondering what the nearly 3,000 people dead in the attacks of Sept. 11. 2001 would have thought in knowing that their deaths resulted in the Bush administration granting itself dictatorial powers.