Undoubtedly, the ACLU and other left-wingers who don't believe the threat of Islamic terror is real will rejoice in today's Supreme Court decision. In a 5-4 vote, the Court ruled in Boumediene v. Bush that enemy combatants who have never set foot in the U.S. should be granted the full protection of the United States Constitution. This includes the right to Habeus Corpus, which will ensure that every detainee at Guantanamo gets their "day in court".

For those who recall the fiasco that was the Padilla case (and does anyone remember O.J. Simpson?), granting access to the U.S. courts will result in an endless parade of show trials where lawyers for the defendants will posture and preen in a bid to embarrass the American government. And even more damaging, the rules of evidence will compel the government to disclose classified information to the public that may include critical "sources and methods" of the intelligence agencies. The government will then have a stark choice: provide the information that might jeopardise sources and current operations, or let the prisoner walk. We already have evidence that several enemy combatants released from Guantanamo have returned to the fight against American soldiers. If you are interested in protecting the American public, what kind of choice is this?

The Boumediene decision is indefensible -- both as a matter of judicial and public policy. While the court traditionally follows stare decisis (or precedent) in its rulings, in this case the court specifically went against its prior ruling from 1950 in Johnson v. Eisentrager. In that case, the court specifically ruled that alien combatants had no right to Habeus Corpus. According to James Taranto at the Wall Street Journal, the reason for overturning Eisentrager was something of a technicality:

"The majority distinguished Guantanamo from the facility at issue in Eisentrager--a U.S.-administered prison in occupied Germany--on the ground that although the Guantanamo Bay Naval Base is technically on Cuban territory, America exercises "complete jurisdiction and control" over it. Thus, detainees have constitutional rights pursuant to today's ruling only if they are held at Guantanamo."

This, then, will be the final straw for Guantanamo, which both Barack Obama and John McCain have vowed to close in any event. But for the remaining 270 detainees there -- all hardened Al Qaeda extremists or other terrorists caught in Iraq and Afghanistan -- the circus is about to begin. How many of them will be released to fight another day? Justice Antonin Scalia, for one, believes that it will endanger American lives. In dissent he writes in Boumediene:

"[Today's decision] will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today."

The abandonment of the principle of precedence is hard to understand in this case -- particularly since the differences between Eisentrager and Boumediene are minute. This is a clear case of "legislating from the bench" -- the kind of judicial activism that is anathema to the strict constructionism that conservatives prefer from the Supreme Court. One can only conclude that the liberal justices on the court have a political statement to make -- that the constitutional protections for enemies caught in battle are more important than the security interests of the nation. Of course, most liberals don't believe there is a real and present security threat -- despite that fact that Khalid Sheik Mohammed, the mastermind of 9/11, is one of the first detainees to benefit from his "Perry Mason" moment.

In many ways, this decision shows the vital importance of the Supreme Court in the coming election. For all the discussion in this blog and others as to the issue of foreign policy and economic experience, the most lasting impact of the next presidency will undoubtedly be who he picks to replace Justice John Paul Stevens -- the next likely justice to retire. While Justice Kennedy provided the critical fifth vote, the four liberals -- Souter, Breyer, Ginsberg and Stevens made up the solid block in favor of this decision. Stevens, appointed to the bench by Gerald Ford, is 88 years old and will likely retire during the next presidential term. His replacement will determine the direction of the court for many years to come.

We all know the kind of justices Barack Obama will appoint -- those in the Ginsberg/Souter/Scalia/Stevens mold. John McCain is on record as wanting to appoint justices more in the mold of John Roberts and Samuel Alito, both of whom joined the minority in opposing the decision in Boumediene.

Once again, a clear choice come November.