Habeas schmabeas

Well, the final battle over just how far we have fallen in the annals of 800 years of Anglo-American jurisprudence is on, with the intermediate appelate court known as the United States Court of Appeals for the District of Columbia Circuit, by a 2 judge to 1 margin, answering “Nyet” on the question: “Are there ultimate judicial checks on arbitrary executive power especially when ratified by a feckless partisan Congress?”, in dismissing habeas corpus petitions brought by the nearly 400 remaining Guantanamo detainees.
Unlike prior judicial outrages along the way, I am actually less troubled by this one for at least two reasons: (1) a Democratic controlled Congress may well force the issue, with a bill co-sponsored by Democrat Leahy and Republican Specter (who voted for the current abomination known as the Military Commissions Act before co-sponsoring a bill to repeal it… he’s not running for reelection until 2010, if he dares…) [I won’t even mention Jack Murtha’s efforts to close Gitmo altogether… which are coming…], and (2) even if it lost at this level, the Bush Administration was not planning on altering its outrageous detention policy one iota unless and until the Supreme Court, and only the Supreme Court told it to… so frankly, a “win” might be even more troubling in terms of “victory” being academic, pyrrhic, or whatever…
And even there, the Bush Administration has now lost virtually every time a detainee case has gotten to the Supreme Court (Rasul, Hamdi, Hamdan, with two duckings of the issue in Padilla), and quite frankly, the current 2-1 decision of the D.C. Circuit is premised on (deliberately) violating the Supreme Court’s own precedent in Rasul, which refused to acknowledged the fiction that the 40 square mile enclave of America at the tip of Cuba is somehow beyond the juirsdiction of American courts… so we’ll see.
But there you go. Yet another case going up to the Supreme Court; now with over five years of arbitrary detention, and counting, with nearly half of the “worst of the worst” already released, because, well, they weren’t quite so dangerous after all. This will matter probably very little in the lives (what’s left of them) of the nearly 400 we are still holding… or maybe it will be the beginning of the end… or the middle of the middle…
Who knows any more?