Among the problems the majority saw was the prisoner’s limited access to classified information, even though his personal representative is allowed access to it and can summarize it for the accused. Exactly what procedures would pass muster with the majority? Well, this has to be figured out by the habeas court later – and most certainly be challenged in endless rounds of further litigation.
At this stage, no one can really tell the extent to which this decision is going to add to judicial confusion, additional administrative difficulty, time and attention of military personnel or how many more prisoners will be mistakenly released to join the at least 30 who were released from Guantanamo only to return to fight the United States.
In reading the majority opinion I am struck by the utter waste that is involved here. No, not the waste of military resources and human life, although such a result is tragically obvious. I refer to the waste of all those years these justices spent in law school studying how adherence to legal precedent is the bedrock of the rule of law, when it turns out, all they really needed was a Pew poll, a subscription to the New York Times, and the latest edition of “How to Make War for Dummies.”
It is truly stunning that this court has seen fit to arrogate unto itself a role in the most important issue facing any country, self-defense, in a case in which Congress has in fact repeatedly acted. This was not a case where Congress did not set the rules; it did. But the court still decided – in the face of overwhelming precedent to the contrary – to intervene. This decision, or course, will allow for "President Bush Is Rebuffed” headlines, the implication being that the Administration was caught red-handed violating clearly established Constitutional rights when in fact the Administration, and the Congress for that matter, followed guidelines established by the Supreme Court itself in prior cases.
People can disagree over whether Congress got it right, but at least members have to face the voters. What remedy do people have now if they don’t like the court’s decision? None. If that thought is not enough to cause concerned citizens to turn out on Election Day to elect a new president, then I don’t know what will be.
I also find it just a tad ironic that in a case involving habeas corpus, which literally means that one must produce a body (or person) before a court to explain the basis on which that person is being detained, the decision of this court may mean more fallen bodies in the defense of a Constitution some of these justices ignored.
Fred Thompson has been a lawyer, actor and United States Senator. He writes exclusive analysis and commentary for Townhall Magazine.
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