The Gitmo Decision.

Kat makes her points in a post down below (and has drawn in Cliff, too. Heh).

I talked with a lawyer friend of mine -

"Yeah. I'm still somewhat bemused. They're essentially saying that all those POW's we gathered up in WWII should have been treated the same way.

Unless I'm missing something."

This was her take:

Yep. However, since Habeas rules weren't (according to this court) suspended, and these guys/gals are on American soil (or close enough), they now get to petition for habeas. Nevertheless, the VAST majority of habeas petitions are summarily denied every year - almost on auto-pilot. So don't worry too much. And the good thing is that since they now are being "their rights," those who argue we should shut down Gitmo now have one less arrow in their quivers!!

Chief Justice John Roberts, who recused himself because of previous involvement in the case, had this to say:

So who has won? Not the detainees. The Court's analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to "determine—through democratic means—how best" to balance the security of the American people with the detainees' liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.

That said, there is truth in here, too, from the majority opinion [emphasis mine in the quote]:

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined.If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. Cf. Hamdan, 548 U. S., at 636 (BREYER, J., concurring) ("[J]udicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine— through democratic means—how best to do so").

It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

This outcome isn't really surprising to me. Nor is it unprecedented - the Court has not been friendly to the idea of suspending habeas in the past, in the cases of the Civil War and World War II. The "Great Writ" as it's called, is really an important foundation of our legal system. A lack thereof is precisely, for example, what allowed the National Socialist German Workers Party to set up detention camps in Germany in the 30's, and create a whole extra-legal system of detention, and, eventually, murder. No, certainly not a likely outcome here. But I'm feeling like if we're going to fight tooth and nail against any restriction on the government's ability to regulate firearms, we need to pay as much attention to the government's ability to regulate our persons. Habeas is a control on government power. One of the concerns civil libertarians on both sides of the political spectrum share about aspects of the Patriot Act and other actions on the part of government is... the apparent ability of the government to take the average citizen, a lifelong resident of the nation, with birthright citizenship, and classify them as unlawful combatants. We don't mind so much when it's some foreign fighter, because we trust the government to not behave that way to the citizenry.

But should we? Feel that safe?

Heed well the history of the Palmer Raids, conducted under the rule of Woodrow Wilson. David Kennedy in his book Over Here: The First World War and American Society (New York: Oxford University Press, 1980), quotes Wilson on page 24:

Hyphenated Americans (who) have poured the poison of disloyalty into the very arteries of our national life. Such creatures of passion, disloyalty and anarchy must be crushed out

Right now, the Left conveniently forgets the behavior of their forbears, and paints activity like the Palmer Raids as a phenomenon of the Right - however... In June of 1917, Congress passed the Espionage Act. The law made illegal acts of interference in foreign policy and the conduct of espionage. This law instituted fines and prison terms of up to 20 years for anyone who obstructed the draft or encouraged "disloyalty" against the U.S. government. This is a disease of power, not of party. This is a bludgeon that can be used by any who pick it up.

So, I'm nowhere near as upset by this ruling as many of my fellow-travelers are. The Court has thrown it back to the Congress and the President - and by extension - us. Just makes the elections more important, eh? Especially if we can keep the politicians focused on this sort of external thing, they'll have less time to fiddle with our lives, thank you very much.

You may commence firing.

Update: The Editors of National Review are not pleased, predictably, given the editorializing that has gone on there ere now. They give strong note to Chief Justice Robert's dissent (provided above). Sift through it all, however, and I don't think we're that far apart - and the part they attack, which is, I freely admit, the weakest part of my response - is that while they've thrown it back to Congress and the Executive, it is these same people (the Court) who will sit in judgement of what results.

Which is why, for both sides... the upcoming election is important. And why sitting it out, taking your blocks and not playing this year, because your guy or gal didn't make it, is going to be some potentially really tough love, as you cut off your nose with a chainsaw to spite your face. Just a thought.

And I hear Senator McCain is not pleased with it, either. I should note I'm not *pleased* by it. I'm just not motivated to think that the world just ended.