Why the Plight of the John Doe Enemy Combatant Should Alarm You

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From https://www.lawfareblog.com/why-plight-john-doe-enemy-combatant-should-alarm-you :

Why the Plight of the John Doe Enemy Combatant Should Alarm You
By Steve Vladeck Tuesday, October 10, 2017, 10:54 AM

For months, Ben and I have teasingly harkened back to the halcyon days when we used to disagree more often—when the relatively modest real estate between our respective views on U.S. national security law and policy defined a significant amount of the space in which much of the meaningful public debate and discourse took place. For obvious reasons, those (often heated) debates have largely receded into the background over the past nine months, thanks to the widespread unity about just how problematic, wrongheaded, and affirmatively dangerous that which passes these days for U.S. national security “policy” has become.

But Ben’s response to my Just Security post from last Wednesday (and the habeas petition filed by the ACLU on Thursday) in the case of the John Doe U.S. citizen being held in Iraq as an “enemy combatant” sure reminds me of the good old days. In a nutshell, Ben isn’t worried about the fact that a U.S. citizen has been held in incommunicado military detention for almost a month because (1) the problem of military detention of Americans “turned out to be self-limiting, because holding people in military detention created more problems than it solved legally for the government”; (2) the U.S. citizens who were subjected to military detention ended up being so held for periods that were “relatively brief”; and (3) the Supreme Court’s 2004 decision in the Hamdi case both sustained the legality of the government’s detention authority even over citizens and required enough process to ensure that “military detention of citizens was not going to be a zone of unaccountable executive discretion.” Taking all of these together, Ben concludes that: “I have no particular discomfort with the short-term military detention of citizens, particularly in combat theaters, but I’m glad such detainees have habeas rights to put pressure on the government to keep detention short and to look for more attractive long-term dispositions.”

I have three problems with this analysis:

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