‹ Judge not (this case) lest ye be judged, Judge Kozinski •
The Supreme Court has decided the Guantanamo detainee cases, Boumediene and al Odah. As generally expected from this bunch, and as hoped by most elites and feared by some of us, the Court held (5-4) against the democratically-elected branches that foreign unlawful combatants held outside the territory of the United States nevertheless have a right of access to federal courts under habeas corpus proceedings.
From a very brief review, it looks like a typical Kennedy product, earnest, sincere, and complete mush as constitutional law. At least those of us skeptical of “lawfare” to constrain executive authority to direct war, especially when the President has the assent of Congress, will have the fun of reading the Roberts and Scalia dissents. Apparently both justices are in fine form in their fileting of the Kennedy opinion. I will have more to post after I have read more of the opinions, though I am getting tired of 70-page majority opinions. If it takes that long to opine that an action of the political branches is unconstitutional, then it probably isn’t.
In the meantime, for those of you chomping at the bit to read the opinions, here is the opinion in full (majority, concurrence, and dissents). Enjoy.
You might also go to The Volokh Conspiracy and to Bench Memos at National Review through the links on the right side of this blog for some further discussion of the case.
“The facts of life are conservative.” - Margaret Thatcher
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