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
The majority had simply decided that prior courts had denied such rulings based on “practical considerations.” In other words in prior cases and prior wars it had just been too inconvenient to bestow the right of habeas corpus upon non-citizens in foreign jurisdictions. So, by focusing on what they saw as “practical” instead of those pesky court precedents based upon the issues of citizenship and foreign territory … and the Constitution … the majority reached the conclusion they wanted to, since what is practical is subjective. One can only ponder the state of our nation directed by the subjective instead of the Constitution.
As Chief Justice Roberts pointed out in his dissent, the court strikes down as inadequate the most generous set of protections ever afforded aliens detained by this country as enemy combatants.
Fred Thompson has been a lawyer, actor and United States Senator. He writes exclusive analysis and commentary for Townhall Magazine.
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