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Saying that he has basically ended the war, at least in afghanistan. at a certain point in time it will have to be grappled with whether by congress or the court whether we are at war and whether we therefore have authority under the laws of war to continue to detain the enemy combatants. senator graham seems to suggest because he thinks if you release them it would be very dangerous for americans, that that's enough to keep them detained. but it is not. somebody has to decide that there is an active war going on. that's a complex question. i was surprised she was willing to engage on it. >> a...

Detainees by our government, that we were acting as war criminals? >> senator, i don't remember that accusation but i will say that -- >> do you believe that's true, that america was acting as war criminals in holding these detainees? >> senator, the supreme court held that the executive branch has the authority to detain people who are designated as enemy combatants for the duration of the hostilities. and what i was doing in the context of the habeas petitions at this very early stage in the process, was making allegations to preserve issues on behalf of my clients. a habeas petition is like...

How could a lawyer accuse the secretary of the united states of being a war criminal and not remember it? the group she was associated with want to destroy the legal regime at guantanamo bay that were allowed to hold these tariffs as enemy combatants. they wanted to treat them as common criminals, try them or let them go. 37% recidivism rate. i don't buy the idea that she wasn't an activist when it came to changing the legal regime that protected this nation since 9/11. >> judge jeanine: right. one last question, are you going to vote for her? >> stay tuned. >> judge jeanine: okay. senator gra...

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...

Bay? >> thank you, senator. i want to clarify, when i first started working on these cases, i was an assistant public defender. the supreme court in 2004 issued two opinions that began this group of cases and these issues and this was in the wake of the tragic and terrible attack on this country in 9/11 and the executive's use of authority to detain enemy combatants at guantanamo bay. in 2004, the supreme court ruled that the executive did have the authority to make those decisions, in one case, and in another case, the supreme court ruled that anyone so detained could file a legal challenge.