Justice Scalia, deriding strict constructionism and distinguishing it from his own brand of textualism, once wrote that "I am not a strict constructionist, and no one ought to be. . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." I was reminded...
Let me first address Steve's point about incrementalism, then Deborah's and Steve's tag-team argument that my distinction between statutory review mechanisms and open-ended habeas review is a false one. (I'll address Marty's, Geoffrey's and Bobby's posts in separate posts this evening.) On incrementalism, I largely agree with Steve's characterization of the court's approach as incremental, and I don't disagree either that...
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...
First, sincere thanks to the OpinioJuris team for inviting me to share my thoughts on Ben Wittes exceptional book; and thanks to Ben for such a well researched, well written, and provocative work. My initial reaction to the book was that Ben has hit the proverbial nail on the head in terms of defining the policy challenge surrounding how the United States...
As I was saying, it is a central theme of Law and the Long War that "we do not have a lot of law here" (p.11). Boy, that sure would be news to David Addington! If we don't have a lot of law here, then why is it that the Bush Administration has spent the past seven years writing memo after...
Piggybacking (again) on Deborah's response to Ben's response to...
Thanks for the detailed reply, Ben – already enjoying this discussion. I’ll leave it to Marty and his own considerable blogging skills to discuss his views about the role of Congress. Let me get back to you for now about the courts. You write that you are “deeply disquieted by any substantial role for judges in the design of...
Deborah's and Marty's challenging posts throw down the gauntlet in a number of important areas. To keep this response at a reasonable length, I'm going to boil their points down to five broad arguments. I'm not trying, in doing so, to dodge or elide their other points; consider this as a first pass at a response. I'm happy to swing back...
As usual, I agree with much of what Marty says, especially Marty's suggestion that he is almost inclined to say that this is the single volume to read to find out where we are and where we've been (query whether the same might also be said about Jane Mayer's new book, but more on that later). Marty is also right,...
I will address later this morning the raft of issues raised by Deborah's and Marty's posts. I want, however, to briefly clarify a point that has become a little bit muddy as to my view of whether America is really at war. Several posts seem to take it as a given that I am arguing for a war model in the...
My apologies for implying that Ben is a neoconservative, but I think that the title of my last post -- "Damning International Tribunals With Faint Praise" -- is accurate. Stray or not, Ben's comment praises the international tribunals for (ostensibly) not offering defendants the same kinds of protections that defendants enjoy in U.S. civilian courts. The belief that the Rome...
Thanks so much to the Opinio Juris folks for the opportunity to participate in this wonderful symposium. Ben's book truly is indispensable -- a must-read for all those interested in these important topics. In particular, Ben's descriptions of the difficult questions, and his narrative of how we got to this unfortunate point with respect to many of them,...
