Sunday, June 15, 2008

Justice Kennedy's shame

Two paragraphs from Matthew Continetti's The Gitmo Nightmare.

I have a feeling the practical result well be few unlawful combatants ever leave the battlefield. The Administration and Congress came up with about a humane a policy as we can get. Now rather than getting to Lawyers and Courts, these fellows will never make it off the field of battle.

Continetti points out the best arguments against this appalling decicion come from Kennedy himself.
In his opinion, Kennedy conceded that "before today the Court has never held that non-citizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution." Inventing rights seems to be what some of today's Supreme Court justices do best. In 1950 the Court ruled in Johnson v. Eisentrager that foreign nationals held in a military prison on foreign soil (in that case, Germany) had no habeas rights. But, without overruling Eisentrager, Kennedy said the Guantánamo detainees are different from the German prisoners 58 years ago.

Why? Kennedy wrote that Eisentrager had a unique set of "practical considerations," and the United States did not have "de facto" sovereignty over Germany as it does over Guantánamo Bay. That territory, "while technically not part of the United States, is under the complete and total control of our Government." But these slippery distinctions only raise more questions. Doesn't the United States government exercise "complete and total control" over its military and intelligence facilities worldwide? If so, what's to stop foreign combatants held in those locations from asserting their habeas rights?

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