Will’s argument is unpersuasive. Will’s initial argument is that because he deems three decisions to be worse than the Gitmo decision McCain is wrong to say it is, “one of the worst decisions in the history of this country.”
Will acknowledges the fundamental change in the law that brings us into uncertainty but supposes, “the defining will be by Congress, which will be graded by courts.” But as this decision has shown, the defining done by congress since first Gitmo (Hamdan) decision has been capriciously tossed aside by the majority. What reason does congress have to trust the courts based on this ruling?
The reasons why the Gitmo majority made one of the worst decisions in the court’s history are to be found in the dissenting opinions. The Supreme Court reneged on it’s previous Hamdan ruling that suggested congress didn’t get the wording right with respect to using military courts for enemy combatants. Congress addressed the court’s concern by amending the law, but the majority still found ignored the intent of congress. Justice Scalia in his dissent referred to this as “bait and switch”. When the court’s actions begin to resemble used car salesmen, then yes, I think there are certainly grounds for considering this one of the worst decisions.
The liberals on the supreme court seem bent on allowing our constitution to protect anyone in the world regardless of citizenship or enemy combatant status while at the same time selectively drawing from foreign law to reshape our own constitution by decree.
Kennedy appears the most weak kneed member of the Court. On rare occasion when he rules sensibly he follows that with a pathetic position that seems designed to appease his fellows on the LEFT.