In the Boumediene v. Bush case, Justice Kennedy wrote the majority opinion allowing the Guatanamo detainees to have the right of "habeas corpus. According to ccrjustice.org: "the fundamental principles underlying the purpose of habeas corpus: to allow the courts to act as a check against the abuse of Executive power. (From an early date, it was understood that the King, too, was subject to the law.)” Kennedy also pointed out the the lengthy imprisonment was exceptional in this case, and since Guantanamo Bay was totally within the jurisdiction of the US, the detainees were deprived of "a speedy trial" (6th Amendment).

"Scalia begins his dissent with a rare exploration of what he perceives to be the “disastrous consequences” of the majority’s decision, including the astonishing assertion that “It [the majority opinion] will almost certainly cause more Americans to be killed.”

I'm subscribed to quite a few channels, and I was surprised that this showed up from The Axis of Steve Stevil Show. Listen to the video, Obama in 2006 was convinced that it would be a "violation of our commitment to the Geneva Convention." Steve further elucidates what the definition of a war crime is, according to the Geneva Convention. Steve mentioned that there are seven (7) circumstances that fulfill that definition of a war crime. The one that is most applicable in 9/11 is "extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly." (Fourth Geneva Convention). In other words destruction done deliberately, as it was in Pearl Harbor, and, even more egregiously, because it harmed non-military civilians.

Let's look at a little history of the issues:

In June 2006, the Supreme Court reversed the decision of the D.C. Court of Appeals that allowed the Geneva Convention to be invoked in the case of Salim Hamadan, since he could not be considered and "Illegal combatant of war." Salim was an American citizen and his father "filed this habeas petition on his behalf under 28 U. S. C. §2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments, according to Case Law.Later that year, in the wake of the decision in Hamadan, President Bush signed the Military Commission Act of 2006, which, as you can hear in the video, Obama supported. Later, in Al Odah v. U.S, the Military Commissions Act was struck down in the Supreme Court in June 2008. In Boumedienne v Bush, the Supreme Court decided (5-4) that the Guantanamo detainees had the right to habeas corpus and trial in US federal court. In the majority opinion, Justice Kennedy, noted for his pragmatism, may have simply wanted to deal with the majority of the detainees who were being held without any charges.

However, last May 2009, Obama's team issued a statement that it would continue with the Military Tribunals, with the exception that evidence obtained under duress, could not be admitted, according to Salon. The same is true in Federal civilian court, that evidence obtained under duress is inadmissible. Obama, stated, however, that 13 of the 240 detainees would still be tried by Military tribunal, like Khalid Sheik Mohammed, according to Skeeter Bites. However, the Administration finally reversed itself again, probably under pressure from the left, namely the ACLU. Obama signed a revised Military Commission Act on October 29, 2009, according to CS Monitor. In the Military Commission Act of 2009, "Congress granted the commission jurisdiction over 32 crimes. Many of them are standard war crimes such as pillaging, denying quarter, taking hostages, torture, mutilation, and rape. But the new law also authorizes military commissions to try individuals for conspiracy and providing material support for terrorism.

One obvious conclusion for Obama reversing himself so quickly, is that, when he signed the Military Commission Act of 2009, the "Hate Crimes Bill" was tagged onto it. In fact, there were some other provisions in the total bill, which was the National Defense Authorization Act of 2009, that Obama didn't especially want either, like a certain fighter jet.

US District Attorney Michael Mukasey, speaking at the Federalist Society today, stated that this is a very dangerous decision, that could incite followers of Kalid Sheik Mohammed to bring more unrest to NYC. He criticized Eric Holder's decision to try them in civilian court. On the one hand, Hamadan was an American citizen, but KSM can, in no way, be considered as deserving the protection of Constitutional. Mukasey said: "decision was "not only unwise, but based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously-based ideology that calls on them to kill us, and to return instead to the mindset that prevailed before Sept. 11 that acts like the first World Trade Center bombing, the attacks on our embassies in Africa and other such acts can and should be treated as conventional crimes and tried in conventional courts."

Wretchard states "Hamadan, I think, may come to be regarded by future historians as a blow against the Geneva Conventions. Not because anyone will disobey them; but because their fulfillment -- as fulfilled they now must be -- will have the effect of undermining the very institutions on which they are based; of reinforcing not reciprocity but asymmetry in battlefield etiquette.

Additionally Eric Holder may have a real conflict of interest, says John M. O'Hara, because "As Michelle Malkin documents, Holder not only pushed for the pardoning of actual terrorists in his last stint at DOJ, but he was also a senior partner at a law firm representing detainees at Guantanamo." One commentator on John's blog states "This is not a trial of KSM, this is trial to implement Transnational Law." Remember the Copenhagen Treaty? And Harold Koh at the State department who believes in the validity of Sharia law?