Hamdi v. Rumsfeld, the Gitmo Detainee case, concerns the most elemental of liberty interests--the interest in being free from physical detention by one's own government.  I'm am flabergasted that for the second time this term, I agree with Justice Antonin Scalia's dissent, whose reputation as an arch conservative and caustic jurist naturally puts him at odds with most of what I believe.  He is either becoming more reasonable with age, or I'm becoming more like him. 

What is surpising is that not only is Scalia's dissent at odds with Sandy Day's plurality opinion, but also 180 degrees in opposition to "uncle" Clarence Thomas's agreement with Solicitor General Ted Olson's argument that during war, POTUS's power cannot be questioned.  Scalia not only rejects Thomas' tyrranical view of presidential superiority to the other "co-equal" branches, but also that O'Conner and the others don't go far enough.

Scalia, who is joined by Justice Stevens, says simply (after an exhaustive historical analysis which includes precedent from the 1500's):  Unless the president suspends habeas corpus (which is available to POTUS during a crisis, but would certainly be political suicide) either charge the Gitmo detainees, or let them go.

If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.

* * *

     The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared,

"is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free." The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

     Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis

UPDATE: Glen Reynolds tips us off to an analysis by The New Republic which highlights the differences between the two conservatives, Scalia and Thomas, in which I can safely assume the world is not going to end because I find myself (as usual) hating Scalia's 1st amendment opinion in the latest pornography case, Ashcroft v. ACLU. What is troubling is that I agreed with Thomas this time, but also a majority of the court.  

Just a thought: They put the First Amendment, first, because they really meant it!