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prosecuted by the military, and judged and sentenced by military officers. Decisions made by a military tribunal cannot be appealed to federal courts.
    In fact the authority granted by President Bush in 2001 was merely a re-awakening of a traditional U.S. tool against adversarial foes. General Washington used military tribunals during the American Revolution. The Union used them during, and in the immediate aftermath, of the Civil War. General Andrew Jackson used one to try a British spy during the War of 1812.
    As stacked decks go, the old MT was right up there. And, once more by a process close to osmosis, the fluttering heart of America’s political left was touched: In July of 2004, a set of tribunals, the Combatant Status Reviews, were convened to decide whether detainees held at Guantanamo were correctly designated “enemy combatants.”
    The hearings were exhaustive, the rights of each individual being weighed and balanced. The military, generally speaking, thought the whole world must have gone crazy, as they watched the U.S. legal system turning itself inside out in an attempt to liberate guys who had been hurling bombs, rockets, and other explosives at U.S. troops.

    Then, in January 2005, Washington federal judge Joyce Hens Green ruled that the Combatant Status Review Tribunal was unconstitutional, and that detainees were entitled to the rights granted by the Constitution of the United States of America. Yousaf, Ibrahim, Ben, and Abu Hassan were essentially up and running.
    Almost immediately two acts were introduced. The first one forbade the inhumane treatment of prisoners, including those at Guantanamo Bay, and laid out tough guidelines for “trials.” A few months later, however, the Bush administration forced the Military Commissions Act through Congress. This second act authorized trial by military commission for violations of the laws of war. Yousaf and his cohorts were still up, but not running.
    And for two more years they waited for a new breakthrough, confident that in the end, the “soft” western conscience would prevail on their side. And they were right. On June 12, 2008, the Supreme Court, despite being almost deadlocked, ruled by the narrowest of divided margins that foreign detainees held for years at Guantanamo Bay had the right to appeal to U.S. civilian courts to challenge indefinite imprisonment without charges.
    President Bush was furious at this third occasion the Supreme Court had repudiated him. Not only did he strongly disagree with the verdict, he actually threatened to seek yet another law to keep dangerous terror suspects locked up.
    Justice Anthony Kennedy, whose vote had swayed the decision, acknowledged the terrorism threat that faced the United States but argued that “the Laws and Constitution are designed to survive and remain in force, even in extraordinary times.”
    He also ruled that petitioners had the constitutional privilege of the writ of habeas corpus , the right to appear before a court to protest the illegality of their incarceration without trial. In Justice Kennedy’s opinion, their presence as prisoners in Guantanamo did not bar them from seeking the writ. Nor did it bar them from invoking the Suspension Clause, a civil guarantee that blocks Congress from suspending habeas corpus .
    And just to stick it to the president and his military staff one more time, the justice referred to the government’s argument that this clause affords petitioners no rights, because the United States does not claim sovereignty over the U.S. Naval Station at the eastern tip of Cuba. “Rejected,” Kennedy wrote, not adding the word “garbage,” though he might have, so certain was he of his ruling.

    Chief Justice John Roberts was among the four men who dissented from Kennedy’s opinion. The others were justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
    Ten days later the U.S. Court of Appeals for the District of Columbia Circuit issued an historic ruling—that a