more on Boumediene
After reading the opinions and letting them digest awhile, it strikes me that Bush lost this case (and eroded Executive authority) precisely because he tried to evade both US and international law in his handling of prisoners.
Had he strictly limited the detainees to those captured in the act of fighting against US forces, he would surely have had the right under Geneva to treat those individuals as prisoners of war. He would have been expected to conform to the Geneva convention, but this would not have been a huge problem. But he didn't do that - he also detained people captured far from any field of battle, people who were not actively involved in attacking the US or its forces, or resisting US arms, or verifiably members of the enemy (as would be the case if they were wearing uniforms of enemy forces) - and insisted as treating them all as enemy combatants while denying them any ability to challenge that classification. Bush's insistence on applying wartime logic (and even then, only when as it suited him) to people who were not captured while opposing the US in battle weakened his case.
Had he not expatriated the detainees to Guantánamo (in an effort to evade the requirements of both the Geneva convention and US law), he would still have had to allow the detainees to challenge the basis of their detention - but he would have been perfectly within the law to limit the scope of such challenges on the basis of wartime practicality. But by going to such great lengths to avoid legal reach, to avoid scrutiny, and to avoid giving detainees a timely hearing, he removed the very justifications that exist for limiting habeas corpus in wartime. By going to great expense to set up Guantánamo and remove detainees there, and by taking six years to start letting the detainees contest their imprisonment (and even then only after multiple appeals all the way to the supreme court), he lost the ability to claim that - due to wartime conditions - there was either not enough time or not enough resources to give the detainees full habeas corpus rights.
Had he strictly limited the detainees to those captured in the act of fighting against US forces, he would surely have had the right under Geneva to treat those individuals as prisoners of war. He would have been expected to conform to the Geneva convention, but this would not have been a huge problem. But he didn't do that - he also detained people captured far from any field of battle, people who were not actively involved in attacking the US or its forces, or resisting US arms, or verifiably members of the enemy (as would be the case if they were wearing uniforms of enemy forces) - and insisted as treating them all as enemy combatants while denying them any ability to challenge that classification. Bush's insistence on applying wartime logic (and even then, only when as it suited him) to people who were not captured while opposing the US in battle weakened his case.
Had he not expatriated the detainees to Guantánamo (in an effort to evade the requirements of both the Geneva convention and US law), he would still have had to allow the detainees to challenge the basis of their detention - but he would have been perfectly within the law to limit the scope of such challenges on the basis of wartime practicality. But by going to such great lengths to avoid legal reach, to avoid scrutiny, and to avoid giving detainees a timely hearing, he removed the very justifications that exist for limiting habeas corpus in wartime. By going to great expense to set up Guantánamo and remove detainees there, and by taking six years to start letting the detainees contest their imprisonment (and even then only after multiple appeals all the way to the supreme court), he lost the ability to claim that - due to wartime conditions - there was either not enough time or not enough resources to give the detainees full habeas corpus rights.