Bobby Chesney’s post about military detention asks all the right questions and I agree with the first several steps in his analysis of those questions. I want to record some questions or quibbles about the later steps in his analysis, however. It is true that Hamdi baldly forecloses “indefinite detention for the purpose of interrogation,” but it is...
In Terror in the Balance, we put aside the view that there is an absolute moral prohibition on coercive interrogation necessary to save third-party lives. For one thing, we claimed, it is very hard to find moral philosophers who defend that view; most waffle, in the end, by adopting some variant of the view that there is a "catastrophe"...
In a comment to an earlier post by Eric, Marty Lederman has very helpfully raised the issue of how history is relevant to our discussions. I think it is relevant in three different ways: as originalist evidence, as evidence of what is desirable institutional behavior, and as evidence of what is politically possible. After some brief thoughts on...
There is an issue that comes up repeatedly in discussions of national security law. Suppose we define “law” broadly to include the optimal allocation of institutional authority to establish and execute national security policy. On what grounds can academic commentators who lack expertise in national security policy argue for any particular allocation of such authority, in particular circumstances?...
A crucial issue in this conversation is that of presidential motivation. Explicit or implicit claims about presidential motivations underpin many worries about increased deference to the executive in emergencies. Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs). Thus Kevin Jon Heller suggests, en passant, that the executive’s motivation is...
