I want to close by thanking Ben for writing this terrific book, and our hosts here at OJ for sponsoring this discussion. Before sigining off, however, I want to offer a few predictions and related observations about the road ahead. It appears quite possible that in the near future we will substantially reduce our reliance on military detention for terrorism suspects at...
I'd like to explore a bit further the question of what stands in the way of reliance upon domestic criminal prosecution as the primary detention mechanism. First, however, I want to be clear that I do not think that we should entirely forgo military detention with respect to persons captured in connection with the two, relatively conventional armed conflicts currently underway in Afghanistan...
Procedural safeguards and substantive detention criteria exist in a dynamic relationship. One can ramp up procedural safeguards, for example, but this may have little effect on the government's capacity to detain if the substantive detention grounds are defined sufficiently broadly. And by the same token, an unduly strict definition of who may be detained will limit the utility of a...
We've not said as much as we might about the role of the "war" model in the war on terrorism. And so, before we move on to more specific topics tomorrow, I'd like to share a few final thoughts inspired by an article by Bruce Hoffman and Seth Jones that appears in the most recent issue of the National Interest. Discussion of the war in Afghanistan...
I want to explore Ben's point about the desirability of having Congress craft the remaining details of how habeas review will function (now that Boumediene requires such review) rather than having judges craft those rules in the first instance. There are indeed a raft of difficult procedural questions to be resolved in connection with the habeas review required by Boumediene. As I discuss...
Thanks to Chris and his colleagues at OJ for giving me an opportunity to participate in this important discussion. Today we're focused on broad premises underlying the book, and in particular the utility of using the concept of war in connection with counterterrorism policy. Peggy's most recent post critiques the Bush Administration's emphasis on the war model, concluding that "the framing of...
I appreciate Adrian’s thoughtful response to my post on military detention, and would now like to shift gears to a distinct topic of at least equal current significance: the state secrets privilege (“SSP”). We could have a whole symposium on this issue alone, no doubt. In fact, we had one a few months ago over at my usual...
I’d like to steer the discussion toward the question of military detention for a moment. Military detention has been and continues to be the subject of extensive litigation, and it therefore presents a series of occasions implicating the deference thesis. Eric and Adrian discuss the matter from several angles, including one that strikes me as particularly important: procedural safeguards (i.e.,...
[Bobby Chesney is an Associate Professor at Wake Forest University School of Law, and the Chair of the AALS Section on National Security Law. He is the author of the forthcoming article Disaggregating Deference: The Judicial Power and Executive Branch Treaty Interpretations (Iowa Law Review 2007)] As Adrian noted yesterday in his post “First-Order and Second-Order Judgments,” he and Eric...
Today is my last day as a guest-blogger here at Opinio Juris, and so I'd like to begin by thinking Peggy, Roger, Julian, and Chris for their hospitality. I must say that I have a new respect for the effort that they put forth in generating the wonderful product from which we all benefit on this blog. Let's...
Federal courts routinely assert that they are bound to give deference to treaty interpretations adopted by the Executive branch. See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1992) (stating that the "meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight"). And, at least...
Although it gets us a bit far afield from the focus of Opinio Juris, I'm going to follow Roger and Julian's lead and blog briefly regarding the Padilla indictment. (Yes, I'm still here. Sorry to have been so quite the past two weeks, but I do plan to be more active in the days ahead!)Many months ago, there was considerable...
