Then Boumediene v. Bush came along, striking down the military commission system in Guantanamo Bay, Cuba (Gitmo). For the first time, with a 5-4 split decision, the Article III branch chose to override the Article I Congress that created the military commission system and the Article II president who was fighting a war. The four conservative justices that dissented in that case warned that America would regret the majority’s decision.

Today may be the beginning of that regret. Habeas here means everyone captured on battlefields is presumed innocent and gets taxpayer-funded defense lawyers and every right of Americans. That includes making the soldiers involved to be flown back to the U.S. for the terrorist’s trial, where they’ll have to testify and defend themselves. The soldiers will have to provide evidence to prove their allegations about the terrorist defendant. If they can’t prove every part of what they say, the terrorist will go free.

What’s surprising about this decision is that it wasn’t necessary. Judge Bates wrote that habeas had to apply in Afghanistan because Bagram Air Force Base could not be distinguished from Gitmo.

That’s just not so. In Johnson v. Eisentrager in 1950, the Court held that habeas did not apply to the U.S. military bases in Germany. In Boumediene, the Court bent over backwards to explain why Gitmo was different from Germany, saying that Gitmo was a century-long lease from Cuba that amounted to complete and permanent U.S. control. Therefore, Boumediene held, Gitmo was de facto sovereign American soil, and that’s why habeas applies.

U.S. bases in Afghanistan are more like those in Germany than Cuba. Bagram Air Force Base is just like the bases in Germany after World War II. If habeas didn’t apply to Germany in the Eisentrager case, then it shouldn’t apply in Afghanistan.

Judge Bates is considered a conservative judge with an excellent reputation. It could be that he felt compelled by the Boumediene case, which he must follow even if he disagrees with it. But this decision seems to go further than the case required, and will now be appealed to the D.C. Circuit. This case could go all the way to the Supreme Court, and change the way America conducts wars forever.