Upon reading the opinion in Boumediene v Bush, one must conclude that the majority knew where they wanted to go and simply had to figure out how to get there. The trip was not a pretty one. How could it be when the justices seemingly wrote a map based on ideas cherry picked from over 400 years of established law and backfilled with justifications to create a new right for alien combatants that Americans themselves do not enjoy?

They could have saved us all a lot of time if they’d told us what was clearly on their minds.

They don’t trust military tribunals to deal with those accused of being enemy combatants, even if the tribunals are following guidelines established by Congress.

That the government has probably detained some prisoners at Guantanamo for longer than they should have.

And that Guantanamo should just be closed.

Though they are willing to give it lip service, they don’t really believe we are at war … at least not a “real” war.

Therefore, they should create a new right for our nation’s enemies commiserate with the displeasure that they and the rest of the “enlightened” people have with this “war,” Guantanamo and the Bush Administration.

At least this approach would have been an honest one and based upon about as much legal justification as the approach they took.

But, instead – as Justice Scalia pointed out in his dissent – they for the first time in our nation’s history, conferred a Constitutional right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war – a broader right than has been given to our own citizens. The court majority did so acknowledging that they could find no precedent to confer such a right to alien enemies not within sovereign U.S. territory Continued...