Justice Breyer: "This is Not a War"

Holding enemy combatants might become more difficult, based on preliminary comments from the liberal wing of the Supreme Court in a case brought by Gitmo prisoner Salim Ahmed Hamdan, one of Osama bin Laden's drivers. Right now, the four liberals on the Court are opposed to holding enemy combatants without bringing "charges," while Chief Justice Roberts recused himself because he already decided in favor of Bush's policy at a lower court. So that leaves only Thomas, Scalia and Alito in favor - with Anthony Kennedy being a decisive vote. But I don't see the Court being deadlocked 4-4 on a case, so I think the current policy might be in jeopardy.

Interestingly, Supreme Court Justice Steven Breyer said the following:

"You want to try a war crime. You want to say this is a war crimes tribunal," Breyer said. "One, this is not a war, at least not an ordinary war. Two, it's not a war crime because that doesn't fall under international law. And three it's not a war crime tribunal or commission because (there is) no emergency."

So we are not at war - I wonder what our soldiers would have to say about that.

Scotus blog has more on the case. Meanwhile, Positive Liberty writes that Scalia has received lots of pressure to recuse himself for a public speech earlier this month about his views regarding enemy combatants. (That would leave only 2, or at most 3, votes for the government policy.)