Well, beyond doubt there is a problem, here, in how to apply the language of the Constitution.

I have read excellent arguments from conservative and libertarian lawyers and Supreme Court watchers on both sides of this one. I can’t find clear fault in the logic of the opinion from the summaries I’ve read.

What it amounts to, from my POV, is a case of being too clever by half by moving them to Gitmo and trying to keep them in legal “no man’s land” for too long. Also, this is a side-effect of the habit we’ve fallen into of never declaring wars and fighting them to dominance: there is a lack of clarity in the legal ramifications of our struggle.

It doesn’t appear that even under wartime conditions that the Court would have ruled any different. What do you think, pgepps?

from what I’ve read, there’re two crux issues here:

1) Gitmo is a long-established base completely under US control; this makes it harder to argue against access to our courts, as the Constitution is the supreme law in any territories, still….murky, but the effect would be quite different if the detainees were in Afghanistan or even Kuwait.

Still, there’s a problem: is every US base now going to need US courts? is military justice now to be usurped by overreach from domestic courts? It’s an open problem, and doesn’t resolve easily on left/right lines.

2) “length of the war” seems to have weighed in on Kennedy’s majority opinion. I don’t see how that is relevant, but…. again, I think that a declared war that had not yet ended would have made this work better. (though some of the historical claims made on the point are wrongheaded)

Basically, the Bush administration outsmarted itself by moving them to Gitmo in order to put them in legal “no man’s land”–doing so left an opening to argue that unchecked executive power could be extended indefinitely if the Supreme Court agreed it was constitutional to do this, and beyond that…. there are no rules in “no man’s land,” so the Court has to either say “it’s really US land and our rules apply” or make up its own rules (or dismiss the case–see “unchecked executive”).

I’ve heard good arguments about the President’s War Powers…. I think that getting a Congressional declaration of war in response to an “Invasion” and asking Congress to suspend habeas corpus for “unlawful enemy combatants” captured or held in US territory would have been a legally safer move.

Politically impossible.

But that’s our problem. Our real strategic weakness is the lack of will in our people, as conditioned by our national news elites, as exploited by our politicians.

That cuts far deeper than any misjudgments the Court made (and I’m not 100% reconciled to this decision, but I don’t see it as, say, bad law the way Kelo or Roe v. Wade were).

oh, by far the best discussion I’ve seen is here, but see also here and here for more critical takes.

Joe, WRT your final example, I think “captured unlawful enemy combatants” are pretty clearly not within the scope of “a well-regulated militia,” or even (on the MOST expansive reading of 2nd Amendment) “the People” (who are US citizens).

The challenge is that the Habeas Corpus clause is in Article 1, and seems therefore to apply throughout US jurisdiction. I’m not entirely sure whether it can be restricted to citizens, or to federal courts, or to the States + DC. It’s not as neat as it seems, really.

I realize my last example was definitely a stretch. What I really wanted to highlight was that liberals will pick and choose only those sections of the Constitution that fit their agenda to interpret literally.

These same liberals that wish to extend habeas corpus to detainees off American soil will be the first to fly off the rocker when the SCOTUS upholds 2nd amendment individual rights.