by Matt Barr

You asked for it

The Hamdan ruling, about which you can read thorough, balanced analysis from Orin Kerr, Jack Balkin, Lyle Denniston and elsewhere, should be paraded around as a victory for detainees in the war on terror at one's own risk. As Michael Dorf mentions this morning, the President's power to indefinitely detain terror prisoners without trial at all continues.

The majority conceded that persons who have fairly been determined to be enemy combatants can be held so long as hostilities last. Given continuing conflict in Afghanistan, not to mention the broader "war on terror," that means the Guantanamo Bay prison can remain open for business.

Thus, Hamdan may seem worse than a pyrrhic victory. Imagine you were told that the government cannot put you on trial for a crime because the court was defective, but that it could hold you without trial indefinitely. You would no doubt feel that your "victory" had taken you out of the frying pan and thrown you into the fire.

For the record, I think Mr. Justice Scalia probably had this one right (and that's no given around here!) in dissent.

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute’s most natural reading, every “court, justice, or judge” before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.

This is not a Court that likes to avoid the thorny questions of the day when it's got an opinion.

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