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Justice Thomas demonstrates why we need clear thinking Justices on the bench. Three Republican appointees sided with the left activists. Thomas’s dissent is important because it contradicts the liberal contention that this isn’t a war on terror but rather a criminal action that should be tried in court.

The plurality’s willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous. - Justice Thomas in Dissent

The Court did recognize that detainees need to be held until the war is over.

Excerpt from Justice Thomas’s dissent

Moreover, the President’s determination that the present conflict dates at least to 1996 is supported by overwhelming evidence. According to the State Department, al Qaeda declared war on the United States as early as August 1996. See Dept. of State Fact Sheet: Usama bin Ladin (Aug. 21, 1998); Dept. of State Fact Sheet: The Charges against International Terrorist Usama Bin Laden (Dec. 20, 2000); cf. Prize Cases, 2 Black, at 668 (recognizing that a state of war exists even if “the declaration of it be unilateral” (emphasis in original)).

In February 1998, al Qaeda leadership issued another statement ordering the indiscriminate—and, even under the laws of war as applied to legitimate nation-states, plainly illegal—killing of American civilians and military personnel alike. See Jihad Against Jews and Crusaders: World Islamic Front Statement 2 (Feb. 23, 1998), in Y. Alexander & M. Swetnam, Usama bin Laden’s al-Qaida: Profile of a Terrorist Network, App. 1B (2001) (“The ruling to kill the Americans and their allies—civilians and military—is an individual duty for every Muslim who can do it in any country in which it is possible to do it”). This was not mere rhetoric; even before September 11, 2001, al Qaeda was involved in the bombing of the World Trade Center in New York City in 1993, the bombing of the Khobar Towers in Saudi Arabia in 1996, the bombing of the U. S. Embassies in Kenya and Tanzania in 1998, and the attack on the U. S. S. Cole in Yemen in 2000. See id., at 1. In response to these incidents, the United States “attack[ed] facilities belonging to Usama bin Ladin’s network” as early as 1998. Dept. of State Fact Sheet: Usama bin Ladin (Aug. 21, 1998).

Based on the foregoing, the President’s judgment—that the present conflict substantially predates the AUMF, extending at least as far back as al Qaeda’s 1996 declaration of war on our Nation, and that the theater of war extends at least as far as the localities of al Qaeda’s principal bases of operations—is beyond judicial reproach. And the plurality’s unsupportable contrary determination merely confirms that “‘the Judiciary has neither aptitude, facilities nor responsibility’” for making military or foreign affairs judgments. Hamdi, 542 U. S., at 585 (THOMAS, J., dissenting) (quoting Chicago & Southern Air Lines, 333 U. S., at 111).

Others Blogging:

Protein Wisdom :

“But if things shake out as Lederman sees them—and after Kelo and Raich and McCain-Feingold, I’m not even sure the Constitution much matters anymore.”

Captain Ed: Bush Loses On Hamdan

Congress needs to correct this issue immedately. The mischief that this enables will not only hamstring this war on terror, but any future war we may be forced to wage.

Assorted Babble: U.S. Supreme Court Blocks Gitmo War Crimes Trials

Michelle Malkin : ‘SCOTUS WATCH: BRACING FOR HAMDAN’

Stop the ACLU: Supreme Court Rules 5-3: No Military Tribunals, Bush Overstepped Authority

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