His main complaint seems to be that they followed their political inclinations instead of the law, but I can’t tell if he’s being rhetorical about that or not. Does he think it’s ever been otherwise in political cases? Or is he simply feigning shock to stoke a little extra outrage at the majority?
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?…
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.
He’s right about convenience dictating the decision. If this was a traditional war between armies proper, with tens of thousands of prisoners on each side, they’d have been a lot more circumspect about granting habeas rights in broad strokes to enemy combatants. It’s only because most battles this time are fought in skirmishes against small pockets of jihadis (or without any battle at all, i.e. in snatch and grab operations like the sting Pakistan used to nab KSM) that they’re comfortable with the administrative burden of treating combatants as individual criminals entitled to court access. Which makes this another legal advantage Al Qaeda’s gained vis-a-vis regular soldiers from its M.O.
Follow the link for red meat near the end about the practical consequences of the court’s decision. I read some lefty blogger snarking at Scalia for suggesting similarly in his dissent that people might die as an indirect result of some Gitmo degenerate being sprung on a habeas claim, but I haven’t the slightest idea why. Yes, the rhetoric is alarming; so are the implications of the decision. Why the larf?
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