Bruce Kesler gets it.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Americans
to be killed.
Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our precedents,
but rather an inflated notion of judicial supremacy.
. . . the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world.
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspension
Clause, invoking judicially brainstormed separationof-
powers principles to establish a manipulable “functional”
test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misdescribes
important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragically,
it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
SCALIA, J., dissenting
The Constitution is not a suicide pact. It is through such travesties as this that patriotism, devotion to duty and keeping of oaths is diminished.