Defenders of the Boumedienne decision wish to represent the case as somehow conservative, somehow a return to the pre-9/11 status quo. This is entirely wrong. The claim that federal courts have a right to supervise the operational conduct of the armed forces of the United States against foreign enemies taken in arms is unprecedented in US legal history.
The only way to understand this ruling is to appreciate that the president’s critics have now fully rejected the idea of a “war” against terrorism. They have been edging for years to reinterpreting this war as a police matter ... and now they have nearly arrived, repudiating in so doing not only the policies of the Bush years, but Clinton-era practices like rendition. These critics do not mean to return to the “pre-9/11” world. The rulings of the Supreme Court – and the drift of thought of many of the president’s critics – are taking us to a world in which terrorists will enjoy vastly greater rights and protections than those they had even on September 10, 2001.
Any day now, some leftist with an historical bent will declare that the properly legal response to Pearl Harbor would have been to indict General Tojo. It takes little extrapolation from Boumedienne to conclude that he would be correct. After all, just because they are at war with us doesn’t mean that we have any right to be at war with them.
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