Associate Justice Antonin Scalia, who is nothing if not plain-spoken, was his usual clear and precise self on this occasion, even if he does have a well-known tendency to call a spade not just a spade but a damned shovel:
"The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed."
And not just Americans, if Mr. Justice Scalia proves as prescient as he is plain. Already prisoners at Guantanamo who have had to be released have returned to attacking American troops and/or civilian targets, and had to be recaptured. Having again entered the maw of the American judicial system, who knows if they will ever face justice? That question, too, remains Yet To Be Determined.
If and when these military tribunals are reconstituted still again, the high court can declare their standards unconstitutional still again. Till these detainees - including the confessed mastermind of the 9/11 attacks, who should have been swinging from the end of a stout rope long ago - die peacefully of old age. At that point, having voted to delay justice indefinitely, the U.S. Supreme Court can again complain that the process it has repeatedly prolonged is taking entirely too long.
Once upon another time, namely Franklin Roosevelt's, most of a group of German saboteurs that had infiltrated this country were caught, tried by a military tribunal that was convened by executive order for that purpose, promptly convicted and then executed - all within seven weeks. Can anyone imagine that kind of swift and effective justice from this court?
Of course, that war was different. America was determined to win it. At this point, to judge by last week's majority opinion, it's not clear whether the Supreme Court realizes we're in one.
The one thing that this latest example of law at its least vigilant does make clear is the importance of this year's presidential election. John McCain, who knows something about war and being a prisoner thereof, says he would appoint judges who are committed to judicial restraint; he's criticized this decision. Barack Obama has praised it. However confused and confusing this latest decision out of the high court, it does clarify the decision facing the American voter this November.
Something else became clearer to me on wading through the court's muddy majority opinion: If Abraham Lincoln had had a Supreme Court like this to deal with, and he pretty much did, and had that president and commander-in-chief failed to outmaneuver that court's pro-slavery chief justice, the Hon. Roger B. Taney, he of the infamous Dred Scott decision, then I might well be writing this column from Little Rock, Ark., C.S.A.
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