Posted by
Andrews on Wednesday, June 18, 2008 11:42:04 AM
It is hard to argue the recent supreme court case as the arguments in support of it, and the perceptions of its scope appear to be all over the place. Even a question as simple as "what happens when they obtain a writ" seems to be largely unsettled. Partly this is because it is an unprecedented expansion of the law, but partly it is because no one is entirely clear on what the court will accept.
For example, I have read those arguing that the "unlawful enemy combatants" will be granted a hearing and, if found to not be unlawful enemy combatants, they will become prisoners of war. On the other hand, I have read those who with equal authority argue that if they were found not to be unlawful enemy combatants, they would be released. And this confusion is coming form people who have read the actual ruling, not just people working on second hand information.
However, as I have been working largely on second hand information, supplemented with excerpts from the ruling, I plan on holding my tongue until I can get the ruling itself and read through it.
I still stand by my argument that any attempts to limit it by the court, or the efforts to distinguish between a formally declared war and an authorization of military action are futile. But i have to see how much of a role they played in the actual decision.
So, as soon as I dig up a slip opinion, I will probably be publishing a much more reliable, though probably longer and more boring, evaluation of this ruling. I don't expect that finding out the specifics will make me like it any more. If anything I am more likely to find other problems, but we will see.
So, until I read it for myself, no more on this ruling.
UPDATE
That will teach me to be lazy. While I was relying on second hand information, it took me less than 5 minutes to find
the ruling. (Sorry, I attended law school in the age of paper, so I always think slip opinions take a long time to get published, I have yet to unlearn the lessons of my brief stay in law school.)
One thing I do note, even before reading, is that the Congress removed this question from court jurisdiction, invoking Article III Section 2, yet the court simply ignored that. That seems problematic to me.
Well, off to read the decision.