The Transcript ...
... doesn't really do it justice. Alito seemed appalled at the line of questioning. I'm still not defending him, but I can't figure out what Graham was trying to do.
GRAHAM: For those who are watching who are not lawyers, generally speaking, in all of the wars that we've been involved in we don't let the people trying to kill us sue us. Right? And we're not going to let them go at an arbitrary time period if we think they're still dangerous because we don't want to go have to shoot at them again or let them shoot at us again.Since no one else is really mentioning it, maybe I'm the one who's gone off the deep end here. I just found, maybe not the questions themselves, but the manner in which they were delivered, to be out of context. He was giving a stump speech. Of course, this is also the first confirmation hearing to which I've had the luxury of paying close attention, so maybe this is the way it always goes down.
Is that a good summary of the law of armed conflict?
ALITO: I don't know whether I'd put it quite that broadly, Senator.
The precedent that you -- the Johnson v. Eisentrager, of course, has been substantially modified, if not overruled. Ex Parte Quirin, of course, is still a precedent.
There was a lower precedent involving someone who fought with the Italian army. And I can't remember the exact name of it. And that was the case that I thought you were referring to when you first framed the question.
But those are the precedents in the area. Then, if you go back to the Civil War, there's Ex Parte Milligan and a few others.
GRAHAM: We don't have to go back that far.
ALITO: Well, in this area...
ALITO: ... it's actually instructive to do it.