Today the US Supreme Court created an entirely new principle under the United States Constitution -- that it applies to enemy combatants captured on the field of battle by the US military, who are not either citizens or residents of the US, and who have not even entered the United States!

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

In its third rebuke of the Bush administration's treatment of prisoners, the court ruled 5-4 that the government is violating the rights of prisoners being held indefinitely and without charges at the U.S. naval base in Cuba. The court's liberal justices were in the majority.

Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Kennedy said federal judges could ultimately order some detainees to be released, but that such orders would depend on security concerns and other circumstances.

The White House had no immediate comment on the ruling. White House press secretary Dana Perino, traveling with President Bush in Rome, said the administration was reviewing the opinion.

It was not immediately clear whether this ruling, unlike the first two, would lead to prompt hearings for the detainees, some of whom have been held more than 6 years. Roughly 270 men remain at the island prison, classified as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.

Now here's the problem with the decision.

Never, ever, in the history of the United States have those captured by the military during the course of combat operations been entitled to habeas corpus. Not even during the War of 1812 (when the bulk of the combat took place on US territory) and the Civil War (when those captured were, by the logic of the Union position on the right of states to secede, American citizens) have we allowed such individuals access to civilian courts. Indeed, at the height of WWII the Supreme Court ruled that enemy combatants captured on US territory had no habeas rights in Ex Parte Quirin. Under the Geneva Conventions, enemy soldiers are not entitled to access to the civilian courts, and indeed may not be tried by a civilian court -- but the Supreme Court has miraculously ruled that those who violate the laws of war are entitled to greater protection than those who follow it!

Over at Patterico's Pontifications, we get a wonderful view of the the dissent by Justice Scalia, who positively disassembles the logic of the majority in this case. Most notably, Scalia refused to use the traditional phrase "I respectfully dissent" at the end of his opinion, choosing instead to indicate his profound disagreement with the majority by using the much less collegial "I dissent". The most important line of the dissent, however, is this: "The Nation will live to regret what the Court has done today."

Read the opinions here.

H/T Malkin, Hot Air, Flopping Aces

Posted by: Greg at 05:06 AM | Comments (22) | Add Comment
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