I objected specifically to your first objection to Yoo's article, vis: "Yoo is lying, because he says 'They were fighting against the US,' and they weren't firing a weapon at US soldiers when we took them.'"

This argument, as I pointed out, relies entirely on an insanely narrow definition of "fighting against the US." If one applies such a narrow definition, there are all sorts of miscreants whom we cannot say are "fighting against the US;" spies, propagandists, etc. If we apply the normal meaning of the phrase, the mere fact -- on which your first argument relies -- that we captured these individuals while they were doing something other than shooting at US soldiers (for instance, debarking at O'Hare) does not falsify Yoo's claims.

You and Yoo are equivocating on the meaning of the phrase "fighting against the U.S.", conflating the meanings "obviously engaged in hostile activity" and "supporting the enemy in time of war".

Yes, of course people can engage in activities that a country at war would be justified in considering supporting the enemy, without being actively engaged in armed combat on the battlefield or other types of obvious hostile activity.

Yoo's comment as quoted refers to "an alien who was captured fighting against the U.S.". As worded this clearly implies (and relies for it's emotional appeal on) the meaning at the time of capture was engaged in obviously hostile activity.

When you capture someone on the battlefield, engaged in combat with your armed forces, you're unlikely to be wrong that they're supporting the enemy.

When you arrest someone not engaged in any specific fighting activity at the time, not wearing a military uniform of a country with whom you're at war, and without specific evidence of miscreant activities, how do you know?

That's a rhetorical question. The answer is, you require some process whereby the government has to show that they have reason to hold them.

The penultimate paragraph should have read:

When you arrest someone not engaged in any specific hostile activity at the time, not wearing a military uniform of a country with whom you're at war, and without specific evidence of miscreant activities, how do you know?

John Choon Yoo

Professor of Law

BerkeleyLaw - Boalt Hall

University of California

Berkeley, California

Dear Professor Yoo:

You write in the Wall Street Journal for 17 June,

''...a wartime statute, agreed upon by the president

and large majorities of Congress, while hostilities are ongoing...''

and

''Until Boumediene, the Supreme Court had never allowed

an alien who was captured fighting against the U.S. to use

our courts to challenge his detention.''

and specifically that

''In World War II, no civilian court reviewed the thousands

of German prisoners housed in the U.S. Federal judges

never heard cases from the Confederate prisoners of war

held during the Civil War.''

Now I take it from these statements of yours that you and I agree that when enemy soldiers were captured on the battlefields of WWII and the Civil War it was a priori clear, from those circumstances, that these were 'enemy combatants' and that exigencies of battle and the best judgment of field commanders precluded judicial review. These were after all people fortunate not to have been killed outright, in the heat of battle. Captured, instead, and, one presumes, humanely, more or less.

You continue in your editorial

''In the months after the 9/11 attacks, we in the Justice

Department relied on the Supreme Court's word when

we evaluated Guantanamo Bay as a place to hold

al Qaeda terrorists.''

But, although you comfort yourself in that concurrence with the Supreme Court, you make an about-face in your editorial by attacking it for Boumediene. I'm sorry, but you lose me here. Not Boumediene, nor Sami al-Haj, nor Maher Arar, nor many others were 'captured' on battlefields, as you well know. And I'm sure you know how they have been found innocent of actions that would validate their imprisonment, or worse, have been shown to be victims of mistaken identity, and of torture.

Have you forgotten the balance of powers implied by the Constitution?

EVERY person snatched off the street, and NOT run down in the heat of combat, MUST benefit from the full protection of our Constitution. Simply labelling these people 'enemy combatants' is a shameful, Orwellian dodge. It shows the world we are as if the worst of the worst, and hypocrites, for our claimed moral and institutional superiority.

Are you afraid that, given Habeas Corpus and access to the judicial system, these 'devious' enemies will hire good lawyers (such as yourself?) and game the system, 'unfairly' evading what they have coming to them? Then I ask you, sir, to look in the mirror. Have we ever seen so clever a ruse as yours, in your service with the present Administration? Does not winning one's case usually reflect good preparation and skillful representation? Isn't THAT what we all should be looking for, in this matter above all? And above all, in open court where we can hear the arguments and appeal the outcome if need be?

Returning to the 'battlefield' of terrorism, here is what little I can offer, although it depends on a set of mighty 'IF's'. IF our intelligence cadres, our institutional machinery, our individual experts, can be so good, so skillful, and, in the moral dimension, so virtuous, that they successfully identify persons who commit terrorism then I say, Katie bar the door. Let them do what they do and do it where light does not shine. Precedent? Other than a false link to WWII and Civil War, only the realization that in real life some things will always unfold beyond the farthest region of 'the known', even in such terms as our Constitution and our institutional expressions of it.

Let them get it right, those who labor behind closed prison doors. Or hold off.

But of course I'm certain you, the good lawyer, see the fly in this ointment. How can we be sure? Only if, meanwhile, we uphold the Constitution. And Habeas Corpus, the Courts, and the broad light of day, Professor Yoo.

Good day sir and sincerely,

Bob Tyson