This is great. A movement that vales that its Supreme Court picks be based on conservatism and strict constructionism is unhappy with the Court's decision to "suppress creative thinking" when it comes to applying law.
But herein comes the major point. The "creative thinking" in question has entirely to do with a methodology of arrogation of dictatorial power to the executive branch by claiming that no current system of law, whether military or civilian, applies to the Guantanamo detainees, while failing to provide or create any tertium quid--any system of law that creates guidelines concerning procedural methods of justice.
Now, I listened to the oral arguments in Hamdan v. Rumsfeld late Saturday night on C-SPAN because I'm a loser and didn't have anything else to do--and what I heard was fascinating. The administration's Solicitor was arguing before the court that, yes, it was their belief that the Geneva Convention no longer applied, but also that contained within the AUMF passed by Congress was implicit authorization of changes to the procedures of military tribunals (and all other GWOT policies such as torture, though these weren't immediately relevant to the case and were not discussed).
The solicitor also argued something else that in my opinion is completely crucial: that implicit in the passage of the AUMF was an approval by Congress of suspension of the writ of Habeas Corpus, even if Congress wasn't aware that that's what they had done. It was this, principally, that Stevens took to task, and I believe it was this that accounted for the bulk of the animosity in the majority opinion toward the administration. The suspension of Habeas Corpus during a time of invasion or insurrection is one of the most important and weighty decision the Congress can make, Stevens said, and it was absurd to claim that Congress either didn't know they had implicitly agreed to it or were duped into doing so.
The administration was essentially trying to claim that it had the power to do exactly what it wanted, subject to no law, because it had tricked the Congress into abandoning the rule of law through the AUMF as subject to the broadest possible interpretation by John Yoo to include torture, indefinite detention and partial tribunals.
This is why the Supreme Court did what it did. It essentially said, "if you think Congress gave you authorization for all of this, then prove it." The Supreme Court ordered that any future powers had to be expressly delineated by Congress to avoid this sort of "creative thinking" in the future.
By expressing regret about this decision, John Yoo and the administration are essentially admitting that they intended to deceive Congress.
Yoo laments further:
"I worked on the authorization," he added. "We wrote it as broadly as possible. In past wars, the court used to let the president and Congress figure out how to wage the war. That's very different from what's happening today. The court said, 'If you want to do anything, you have to be very specific and precise about it.' "
God forbid that our legal system be specific and precise. If we're required to have a precise legal system, the terrorists have already won.
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