When President George W. Bush and his lawyers were insisting the commander in chief had the sole power to run the new "war on terror," Judge Diane Wood sharply criticized that view.

Wood, now on President Obama's list as a possible Supreme Court nominee, wrote in a 2003 Chicago law review article that "in a democracy, those responsible for national security must do more than say ‘trust us, we know best.' " Secret prisons and secret evidence do not comport with the rule of law, she said.

When the Bush administration argued that a Chinese Muslim could be held indefinitely as a Guantanamo Bay prisoner because he had gone to Afghanistan and may have "associated" with the Taliban, Judge Merrick Garland disagreed.

Garland, also on Obama's short list for the Supreme Court, wrote two years ago for the U.S. Court of Appeals in Washington that "Lewis Carroll notwithstanding, the fact that the government has ‘said it thrice' does not make the allegation true." There was no evidence that the Uighurs were "enemy combatants," he said.