-- Release all those held at Guantanamo and speed them on their way to their next terrorist assault, but that's not likely to happen under this president and commander-in-chief or, one would like to believe, under any other.
-- Try any formerly unlawful combatants under the rules for military courts-martial, with all the risks that would present of terrorists discovering the names of informants and how the government operates against them. They might be entitled to communicate freely with their fellow conspirators or call them as witnesses in their behalf. Each trial could become an extended circus and farce a la the Zacarias Moussaoui case. For all the reasonable precautions associated with military commissions may no longer be legal.
-- Could send these prisoners back to their home countries, where they might be subject to anything from immediate release to being tortured to death. Being sent home could be the last thing many of these detainees would choose. They might find the prospect of indefinite confinement at Gitmo, grim as that is, preferable to being handed over to their compatriots in, say, Egypt or Saudi Arabia.
-- Could, in conjunction with Congress, set up a new system of military commissions that might or might not meet the Supreme Court's objections. In the meantime, over the years it would take to create such a system, put it into place and then perhaps have it overturned by the Supremes again, the prisoners would stay right where they are now. And justice delayed would again be justice denied.
-- Or could do nothing at all, and just hold the prisoners for the duration of the War on Terror, meaning forever. The court did not challenge the long-accepted practice of holding prisoners of war till the end of hostilities. Which means that, in addition to all the other new facilities going up at Gitmo, a capacious cemetery may be needed. Because it's going to take a long time to sort out all the questions the Supreme Court has left unresolved.
While much of the majority opinion is merely confusing, some of it rings unmistakably false. Like the assurance from Associate Justice Stephen Breyer that this decision "does not weaken our nation's ability to deal with danger." Uh huh. It just throws in doubt the whole legal system for dealing with it.
Associate Justice Clarence Thomas was closer to the mark in his dissenting opinion when he warned that this decision will "sorely hamper the president's ability to confront and defeat a new and deadly enemy." Or at least wrap that effort in a legal fog.
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