Andrew C. McCarthy on Supreme Court Nominations: The Security Dimension

National Review Online: "Exactly what kind of procedures and protections are our enemies entitled to in these unprecedented court proceedings? Do they get counsel? Do they get discovery -- including battlefield intelligence? Are these to be full-blown trials in which we take soldiers off the battlefield so that they can testify about the circumstances of the particular enemy combatant's apprehension during this firefight or that? How much, in the middle of a war, should federal judges be able to second-guess commanders in the field? If the jurisdiction of the U.S. courts now extends to Guantanamo Bay, Cuba, why shouldn't it extend to Baghdad, or Kandahar, or anyplace else on the globe where American forces are in de facto control of foreign territory? Are the foreign terrorists entitled to Geneva Convention protections even though they themselves pervert the laws and customs of war? The answer to these and other questions is: We don't know. The Supreme Court provided precious little guidance in Hamdi and Rasul, and Congress has not intervened, so the lower courts are on their own: fashioning new procedures and answering legal questions as they arise, ad hoc. Cases are making their way up the system's chain -- and they may land in the Supreme Court's lap as early as next term."