"We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."So what changed? As Taylor explains,
the Bush team seized on its presumed freedom from judicial oversight, spurned the advice of military lawyers, and denied the detainees any semblance of due process, while subjecting some of them to brutal interrogations.
Rather than taking care to separate the innocent or various categories of suspects from the confirmed terrorists, the Bush administration acted in a clumsy and incompetent manner, with the result that innocent victims were subjected to the same interrogation procedures as the guilty. And it failed to provide "a fair opportunity" for anyone seized by mistake to plead their case and possibly secure release. By failing to create a system to sort the innocent from the guilty, asserting the authority to lock detainees up forever, and using questionable (at best) interrogation techniques on captives regardless of innocence or guilt, it created a backlash that has led to the current situation --where people are actually arguing that hostile aliens should have similar rights to U.S. citizens.
Although I strongly support the option to use extreme measures, including torture, on unmistakably known terrorists like Khalid Sheikh Mohammed, the rest of the Bush administration's record in dealing with detainees is a legacy of incompetence & failure. As Taylor argues, the resulting judicial backlash will hamper the Obama administration in fighting terrorism, and depending on what happens
The potential for disruptive and even dangerous judicial intrusions into military matters is considerable.Just because the Bush administration's incompetence caused all sorts of problems, doesn't mean the situation can't be made even worse by misguided efforts that go too far in the other direction.