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Brief. whether i agree is not the point. 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 who are going to die in jail in gitmo and never go to trial for a lot of good reasons. because the evidence against them is so sensitive, we can't disclose it to the public. that 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 comb...

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'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 has taken up arms against the united states somewhere in the world related to all of this. >> okay. so is an executive branch function to determine whether ...

Worked on or three technically or two different cases. >> we'll have enough. >> yes. >> go back in your chief. i believe you argued that an executive branch should not have the ability to hold an enemy combatant, that you need to try them through some process and release them. >> senators, as you were talking my clients, the kato institute, the rutherford institute and the constitution project made that argument and asked me to draft their brief. >> yes. do you agree with that argue? >> senator, my responsibility was to make my clients' argument and as a nominee to the supreme court that's -- ...

Are putting america in an untenable position. it is not the way you fight a war. if you tried to do in the world war ii they are run you out of town. there is no magic passage of time you have to let them go if they are a threat. so my question is very simple. do you support the idea -- did you support then the idea that indefinite detention of an enemy combatant is unlawful? >> respectfully, senator, 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 everybody at gitmo wants out. i got that. this ...

An enemy combatant. >> well, i believe they make a decision. under current law, i believe that determination is made by the executive branch and the person is put into -- is detained and then the question becomes whether they are able to bring some sort of legal challenge to that. >> they have the habeas right. the law is that the executive branch determines if you are an enemy combatant and under our law, you can appeal that decision to a federal court through habeas, is that correct? >> i believe that's correct. >> is it your view that we can holden me combatants as long as they are a threat...