Over at Mere Dicta (Boalt School of Law, Berkeley), Michael W. Anderson is discussing Yaser Hamdi and Jose Padilla in the context of the Constitution's Treason Clause. The basic issue:

I've heard little discussion about the relevance of the Treason Clause to the Hamdi and Padilla cases before the Court this week. Yet it seems to me to be very pertinent. The basic position of the Bush Administration and the Department of Justice goes something like this:

Bush & DoJ: "Enemy combatants" like Hamdi and Padilla are engaged in acts of war against the United States. The Executive Branch has the power to detain combatants in a war, and the Bill of Rights do not apply to those detained in the course of a war. This seems to make sense at first glance, since soldiers engaged in combat obviously need to be able to deal with enemy fighters unencumbered by warrants, courts, bail hearings and so on. So if you accept that the War on Terror falls under the rubric of a traditional war (a debatable point for several reasons, but a premise that I'll grant arguendo), this argument holds water from an intuitive standpoint.

But the issue is a very different one when the government is detaining American citizens for an extended period of time. Then, the notion that the Constitution gives no role to the judiciary in adjudicating acts of war runs flat into the text of the Treason Clause, Article III, Section 3, Clause 1:

Anderson's prediction is that Supreme Court may rule that Padilla's detention is illegal, while Hamdi's is not, and he explains why.