Neil Gaiman notes that somebody
Neil Gaiman notes that somebody was reading
American Gods a little too closely. And, from the looks of it, fairly successfully. I bet Gaiman takes at least a little bit of pride in reading this story, but he certainly can't admit it.
The thought occurred just now
The thought occurred just now that
Ex Parte Quirin was decided in 1942, and therefore the "enemy combatant" designation existed during the McCarthy Era. Since the current use of that designation seems well-suited to some of the circumstances present at that time, why wasn't it used?
The answer is straightforward -- federal prosecution is controlled by the Department of Justice, which is under the authority of the executive branch. Without a President willing to utilize the Quirin decision, all federal prosecutions continued under the standard judicial system...until now.
In the intervening 60 years, then, the term "enemy combatant" hasn't been tested in the courts. We're going through the process of testing it now, with the Administration arguing that the President can apply it essentially at his discretion, and that the courts have no right to disagree with his judgment. Left unsaid is that a fairly simple solution presents itself -- Congress could define the term and define the circumstances under which it can be used. Whether Congress has the right to do so depends on whether doing so would infringe on the rights of the President as Commander in Chief. I'd argue not, but I'm not certain which way the courts would go.
In any case, our current Congress doesn't seem to be inclined to create any limitations on the President's actions in the war on terrorism. That's a shame, since we otherwise have an expansion of executive branch authority that has effectively gone unchecked, and our system of government isn't generally supposed to permit that.