Kim Zigfield alludes to the real problem with the Boumediene decision. It undermines the carefully constructed system by which surrendering soldiers and non-combatants are protected from harm during time of war.
The extreme sanction of death for unlawful combatants under international law was designed to prevent military activities that would make it impossible to distinguish soldier from civilian. The requirement that irregular military forces have some form of uniform ensures that non-combatants can be readily identified. The Marquis in WWII France wore armbands and the Viet Cong wore the famous black pajamas to meet this requirement. Now that Justice Kennedy has decreed that AQ terrorists not meeting these requirements have superior rights to regular soldiers he has put the lives of legitimate soldiers at risk and has made non-combatants into targets whenever US Forces are engaged in combat in populated areas (see Haditha).
Back in the old west a horse thief was hung not because people held horses in such high esteem but because the act of stealing a man’s horse put a life at risk. Justice Kennedy has just made international horse thievery a lot more profitable.
