A different counting-to-five question

[Volokh, Eugene]

	Here's a different counting-to-five issues:  The Hamdi
plurality, plus Thomas, took the view that the Authorization allowed
military detention at least of citizens who are "'part of or supporting
forces hostile to the United States or coalition partners' in
Afghanistan and who 'engaged in an armed conflict against the United
States' there."

	But what about Padilla, who is alleged to be an enemy combatant,
but who apparently wasn't engaged in an armed conflict against the
United States in Afghanistan?  Well, four of the Justices in Hamdi --
Souter, Ginsburg, Scalia, and Stevens -- would have clearly ruled for
him.  And in Padilla, Justice Stevens's dissent said, in footnote 8,
that "I believe that the Non-Detention Act . . . prohibits -- and the
Authorization for Use of Military Force Joint Resolution . . ., does not
authorize -- the protracted, incommunicado detention of American
citizens arrested in the United States."  The dissent was joined, among
others, by Justice Breyer.  So it sounds like five Justices think that
Padilla should win on this statutory issue (if we take at face value
Breyer's joining without reservations Stevens's opinion).

	Should lower court judges, perhaps in a refiling of the Padilla
case in the Fourth Circuit, feel bound by *that* combination of five
votes, four from Hamdi and one from Padilla?  Or would that be going too
far?  I suspect that they shouldn't feel so bound, and that there is a
difference between counting to five based on opinions in one case, and
doing so based on opinions in two closely linked cases.  But I'd like to
hear what others think.  Thanks,

	Eugene