I'm sure someone who is far more well-versed in Constitutional Law can clarify or correct me on this, but I'm confused on the process for the hearing regarding Hamdi's status as an 'enemy combatant.'
A lot as been made of Justice O'conner's declaration that the rules for such a rehearing don't have to be as stringent as those for a normal criminal trial, for example the presumption might shift to the government and there might be looser evidentiary standards (hearsay evidence for example). However, that view only commands the agreement of 4 members of the court (O'Conner, Rehnquist, Kennedy, and Breyer). Two members of the court (Stevens and Scalia) adapt a "try him or release him" tact, and of course Thomas agreed with the government that Hamdi shouldn't be able to have a hearing at all. The interesting opinion is Justice Souter's (joined by Ginsburg). They disagreed with O'Conner that there is enough justification to hold Hamdi in detention, however they concurred in judgment because "[s]ince this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose." He caveats though, that "It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality's determinations (given the plurality's view of the Force Resolution) that someone in Hamdi's position is entitled at a minimum to notice of the Government's claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker...nor, of course, could I disagree with the plurality's affirmation of Hamdi's right to counsel...On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi...or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas." (emphasis added).
Hence, while 6 justices agree that Hamdi needs the ability, at hearing, to claim his innocence of the charges against him, only 4 agree that the rules for such a trial should be changed to favor the government as the plurality opinion suggests. Another four (counting Stevens and Scalia) believe that any trial that does occur needs to obey normal rules of procedure. Since a majority couldn't be reached on the the second issue, will the trial court default to normal rules of procedure or take O'Conner's plurality viewpoint? At the very least, O'Conner's view does not create precedent, taking away one of the few areas of solace for conservatives worried about the implications of this ruling on the War on Terror.