Of course, before there is a "separation of powers" issue, there must be "power" to separate. As Justice Scalia points out, there is no general principle of separation of powers. There are a number of particular constitutional provisions that when added up are referred to, for short, as "separation of powers." But the general comes from the particular, not the other way around.
And the judiciary simply has no power over enemy combatants in wartime. Such power is committed to the executive as part of the commander in chief's power, and thus implicitly denied to the judiciary, just as is the power to declare war is unilaterally committed to Congress. As one law professor said to me, this is what happens when the swing justice is the dumb justice.
Kennedy's ruling thus effectively overturned the congressional declaration of war -- the use of force resolution voted for by Hillary Clinton, John Kerry, 75 other senators as well as 296 congressmen. If there's no war, then there are no enemy combatants. This is the diabolical arrogance of Kennedy's opinion.
We've been through this before: Should the military run the war or should the courts run the war?
I think the evidence is in.
The patriotic party says we are at war, and the Guantanamo detainees are enemy combatants. Approximately 10,000 prisoners were taken on the battlefield in Afghanistan. Of those, only about 800 ended up in Guantanamo, where their cases have been reviewed by military tribunals and hundreds have been released.
The detainees are not held because they are guilty; they're held to prevent them from returning to the battlefield against the U.S. Since being released, at least 30 Guantanamo detainees have returned to the battlefield, despite their promise to try not to kill any more Americans. I guess you can't trust anybody these days.
The treason party says the detainees are mostly charity workers who happened to be distributing cheese to the poor in Afghanistan when the war broke out, and it was their bad luck to be caught near the fighting.
They consider it self-evident that enemy combatants should have access to the same U.S. courts that recently acquitted R. Kelly of statutory rape despite the existence of a videotape. Good plan, liberals.
The New York Times article on the decision in Boumediene notes that some people "have asserted that those held at Guantanamo have fewer rights than people accused of crimes under American civilian and military law."
In the universal language of children: Duh.
The logical result of Boumediene is for the U.S. military to exert itself a little less trying to take enemy combatants alive. The military also might consider not sending the little darlings to the Guantanamo Spa and Resort.
Instead of playing soccer, volleyball, cards and checkers in Guantanamo, before returning to their cells with arrows pointed toward Mecca for their daily prayers, which are announced five times a day over a camp loudspeaker, the enemy combatants can rot in Egyptian prisons.
That may be the only place left that is safe from Justice Kennedy.
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