Why, really, should it ever stop if, as the chief justice said, the issue is “not really about the detainees at all, but about control of federal policy regarding enemy combatants”?

…It is hard to resist the conclusion that the real point of this game is to force the executive publicly to dance to the Court’s changing music. To come back kowtowing again and again, but somehow always coming up short, with the effect of demonstrating to all the world that executive power has been brought to heel and that the president dances to the Court’s tune but is never allowed quite to catch up to it. It is a special variety of show trial, albeit one that will cause many to rejoice at the executive’s comeuppance, starting with America’s law professors at home and its enemies abroad.

The rules that the President and Congress worked out for detainees provided them with more rights than lawful combatants receive under the Geneva Convention.

has always deferred to President’s incorrect categorization that everyone can be classified as either an unlawful combatant or “no longer dangerous”

The Geneva Convention lays out the requirements for being considered a “lawful combatant.” The obvious thought is that if the prisoners do not meet the requirements for being a ‘lawful combatant’ under the GC and are not obviously a non-combatant, then they can be considered as ‘illegal combatant.’

None of the rights provided the legal combatants are required to be extended to illegal combatants. The US was being nice by extending some of the rights under the GC to illegal combatants.

The whole question of what rights the Gitmo (and other) prisoners have depends entirely on the status of legal or illegal.

Or are we scrapping the GC?

So how about a constitutional amendment, making the waging of war an exclusively executive function, and removing its conduct from the jurisdiction of the federal courts? Would enough state legislatures go for it? (Somebody around here must have some common sense!) Opinions and predictions, please.

Correction: In 2006, the Republicans controlled Congress.

The Democrats won the 2006 elections but only assumed control in 2007 when a new Congress was sworn in.