Eureka! Habeas Lives! If Only On Life Support
The Supreme Court by a vote of 5 to 4 has just handed down a ruling that prisoners at Guantanamo do have a right under the U.S. Constitution, and in particular, the ruling restores habeas corpus to them, giving them the right to challenge their detention in U.S. courts. It does not specifically invalidate the entirety of the odious MCA as far as I can tell.
Need I tell you who the five and who the four were?
Yes, Kennedy joined with the four "liberals," on the court, and the four justices appointed alternately by Ronald Reagan, and George Bush I and II, if memory serves, were in the minority.
This is a big one, folks. Fortunately, Bush can't veto the ruling. And you can be sure that it will be welcomed by a majority of Democrats, especially since it means they don't have to repeal the act they themselves passed. Yes, I do see the irony.
I'm not going to lecture anyone on what this means, or on how depressing is such a narrow margin. But I do think that the collective stink that has been emanating exclusively from the left blogisphere and a specific limited list of pundits, politicians, and lots of left organizations has helped keep this issue alive, plus the lawyers who filed on behalf of their clients.
I would like to point out that this decision overturns the finding of a lower court, the equally odious D.C. circuit, which brings up the importance of those lower court appointees, in the context of the coming election. The Bush administration has had the opportunity to pack its own odious candidates in those positions for the last going-on-eight years, and they had an extra hundred of them that Bill Clinton would have filled if the Republican congress hadn't sat on them.
One note; the NY Times initial report states that both Obama and McCain want to close down Guantanamo, but that is misleading. McCain came out clearly against extending habeas to non-citizen "terror" suspects, and since the ruling is as yet unclear on whether or not it applies to foreign subjects detained and held abroad, don't try and pretend to yourself that a McCain presidency is going to be on the right side of this issue. And yes, I am sure that Obama is as likely to be on the right side of this issue as Hillary Clinton would have been, if at this moment, she was the presumptive nominee for President of the Democratic Party.
Balkinization has the fullest discussion thus far.