Please God Could it Be?

Could Justice Anthony Kennedy be the safety making the game-saving tackle that ensures that we continue to have a Constitution? That’s what it looks like from this account of the argument in Hamdan v. Rumsfeld, the second-most important case of our lives (the first being Padilla, which the Supreme Court is still sitting on a decision of whether to review.)
Your talking dog knew the importance of this case some time ago, when we got this detailed interview from Neal Katyal, who argued on behalf of Mr. Hamdan today at the High Court. To recap, Salim Hamdan is accused of being OBL’s driver; he was captured in Afghanistan, and held at Guantanamo Bay as an enemy combatant, one of only ten out of over 500 still detained charged and scheduled to be tried by military commission. Again, as my savvy readers know (because I have interviewed lawyers for three of the ten so charged, my interview with Josh Dratel, counsel for David Hicks, here, and my interview with Rick Wilson, counsel for Omar Khadr, here), the commissions are arbitrary procedurally, with no rhyme or reason to rules changes, they are heavily dependent on evidence not admissible in other American trials, civilian or military, including hearsay and evidence potentially obtained under torture, there is no clear right to confront accusing witnesses, and… lots of other problems. They are also problematic substantively, as “the worst of the worst” consist of OBL’s auto mechanic/motor pool member, a 15 year old kid who threw a hand grenade in a battle, and some Australian schmuck who guarded a Taliban tank position.
It’s as if we charged Hitler’s manicurist and the bathroom attendant at the Reichstadt building at Nuremberg. And tried them arbitrarily at that.