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Brief. whether i agree with it or not is not the point. i just want you to understand that it is important for all of us no know where you were coming from. if that brief had been accepted by the court, it would be impossible for us to fight this war because there are some people going to die if jail in gitmo and never go to trial for a lot of good reasons. the evidence against them is so sensitive we can't disclose it to the public. we're not charging them with a crime. what we're doing is saying that you engaged in hostile activities against the united states, that you are an enemy combatant...

War. if you tried to do this in world war ii they would run out of town. we would hold enemy combatants as long as there's a threat. there's no magic passage of time that you've got to let them go, so my question is very simple. do you support the idea -- did you support then the idea that indevaney detention of an enemy combatant is unlawful? >> respectfully, senators, when you are an attorney and you have clients who come to you whether they pay or not, you represent their positions before the court. >> i'm sure -- i'm sure everybody at gitmo wants out. now i've got that. this is an amicus b...

Brief. whether i agree with it or not. i just want you to understand that it's important for all of us to know where you were coming from. if that brief had been accepted by the court, it would be impossible for us to fight this war because there's some people going to die in jail in gitmo and never go to trial for a a lot of good reasons, because the evidence against them is so sensitive we can't disclose them to public, that we're not charging them with a crime. what you're doing is you engaged in hostile activities against the united states, that you're an enemy combatant under our law and ...

Of force against people in this way. >> but do you personally believe that al qaeda, isis-type groups are still at war with us? >> i think yes. i think we -- >> we're still in a state of war with certain elements of radical islam to this very day. >> i believe that's documented, yes. >> okay. now, what's the process to determine whether one is an enemy combatant under our law? >> well, i believe that the executive branch makes an assessment of whether or not someone is taking up arms against the united states somewhere in the world related to all of this. >> okay. so it's an executive branch f...

0 misleading the public but taking the court out of context. she repeated testimony from someone else and he says it is her quote. hawley praised her experience and said he looks forward to questioning her today. also important to note many questions about her time as a public defender and for her to get on the bench this time where she was now at the court of appeals three republicans, murcowski, collins and graham all voted in favor. we'll see what they do this time. >> trace: david spunt live at the justice department. >> dana: two fox news contributors. andy mccarthy and constitutional law...