The decision of the US Court of Appeals today appears to be pretty messy. Take this point alone:
The court appears to concede that if an alien detainee captured overseas is thereafter detained in sovereign territory, the detainee is protected by a constitutional right of habeas. (See its discussion of the Rex v. Schiever case from 1759, pages 14-15, in which the court entertained the habeas petition of an alien detainee brought to Liverpool.). What this means is this: Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo's new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast.
We are going to have to deal with that portion of the American public -- the portion supporting the current administration-- which hates lawyers when they assist victims but embraces them when they assist in victimizing an underclass, foreigners, or martyrs to the political will of an autocrat.
