Letters to the Editor
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This is premature
I wish I could take comfort from this piece. I wish that Mr. Blumenthal were right and that the legal edifice (to quote Sascha Baron Cohen) of Bush's "War of Terror" is crumbling. But it is too soon to say.
Al-Marri was decided by the Fourth Circuit, true. But it was decided by the two liberals on the Court, Judge Gregory (whom Clinton appointed to a recess appointment) and Diana G. Motz. Whether their ringing defense of our Constitution will stand or be overturned by the conservative members of the Court sitting en banc is not yet clear.
And the decision by military judges that the military tribunals cannot exercise jurisdiction over certain cases under the infamous Military Commissions Act is weaker than Blumenthal seems to believe (though I applaud the result). It was improper for the military court to have decided sua sponte, without briefing or argument, that it lacks jurisdiction. And substantively it is weak in its interpretation of the MCA. It is too early to say whether the decision's procedural and substantive shortcomings will cause it to be reversed.
On the other hand, the D.C. Circuit -- the Court with effective control over the vast majority of detainee cases has refused to follow the Supreme Court's rulings reaffirming that alien detainees have rights, and that our government must act in accordance with the Constitution. The recent shameful decision by the D.C. Circuit in the case of Boumediene was denied review by the Supreme Court -- which since the appointment of Roberts and Alito has, effectively, ceased to stand up for the Constitution.
Our Constitution and our country remain in grave danger from the President and his hand-picked minions. I wish Blumenthal were right, but it is too soon to say.