From NRO’s Corner:
Unfortunately, I’m going to be out-of-pocket for most of today, so I’ll miss a lot of the post-mortem if the decision comes down. For pre-mortem, though, I’ve been poking around, and it seems like there’s a prevailing view that if — as expected — the decision comes out in favor of Hamdan, the theory will be that al Qaeda does have Geneva Convention protections.
Make no mistake: if this happens, the Supreme Court will have dictated that we now have a treaty with al Qaeda — which no President, no Senate, and no vote of the American people would ever countenance.
Since we don’t have a declaration of war against “al Qaeda” either, I don’t see why we shouldn’t have a fictional treaty with them as well. I mean, isn’t it time to stop being surprised at the Supreme Court’s continual manufacture of legal fictions? This wouldn’t exactly be the first such occurrence of it.
It’s just a good thing that we’ve got Roberts and Alito on the court to prevent such unconstitutional activity….