Of the three major high-court precedents dealing with the war on terror – the Hamdi and Rasul decisions announced in 2004 and the Hamdan decision in June 2006 – Kennedy voted in the majority in all three. Most important, his was the least restrictive opinion of the five-justice liberal majority that struck down Bush's military commission process in June. That is, Kennedy was reluctant to go as far as Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer in limiting Bush's options in the war on terror.
However, he was even more reluctant to grant the president the broad discretion that analysts say would have resulted in the approach favored by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
Instead, Kennedy joined the liberal wing in the Hamdan decision, but once there, he adopted a more centrist stance. He invited Congress to strike the proper balance between protecting national security while also upholding international human rights treaties. "Congress, not the court, is the branch in the better position to undertake the sensitive task of establishing a principle not inconsistent with the national interest or international justice," Kennedy wrote in his concurrence to the Hamdan decision.
The Republican-controlled Congress eagerly accepted the invitation. But if Justice Stevens's Hamdan decision was a rebuke of Bush's terror policies, as many analysts have opined, the Military Commissions Act is a counterrebuke of the liberal wing of the high court – including Kennedy.
The new law rejects much of the liberal wing's approach in the Rasul and Hamdan decisions.
•It rejects the high court's view (in the Rasul decision) that suspected Al Qaeda members detained at Guantánamo Bay, Cuba, must be afforded the right to file habeas corpus challenges in US courts.
•It rejects Stevens's majority opinion (in the Hamdan decision) that the Detainee Treatment Act of 2005 did not retroactively strip the Supreme Court (and other federal courts) of jurisdiction to hear habeas corpus challenges filed by Guantánamo detainees.