Scalia's dissent in Hamdi v. Rumsfeld suggests he would be a fifth vote for the Padilla dissent's position on the merits. He says that, unless the government suspends the writ of habeas corpus (which it has not done), the government must charge a citizen it is holding with a crime. It cannot detain a citizen without charging him. He ends this part of his dissent by noting:

Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.

He notes that this would apply to Hamdi and Padilla (because both are U.S. citizens). And he ends his dissent by saying:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.