Well, we never got as far as interrogation or surveillance, but that's okay. This has been a truly exceptional exchange, a model of everything the debate over law and the war on terror too often is not: civil, serious, rigorous, and respectful of the profound difficulty of the issues at hand. Many thanks to all who participated in it and to...
A few final thoughts on detention and Al-Marwallah before we move on to interrogation--a subject on which I'm certain my arguments will provoke no disagreement. ;-) First, a concession: Marty is quite right that there is an ambiguity in the book concerning what the Al-Marwallah example stands for. I had not noticed this until his last post, and it warrants clarification....
Let me start by saying that I don't think I've substantially narrowed my detention criteria between the book and this discussion--though I am potentially amenable to doing so. The book is written for a general-interest audience and, consequently, at a higher-level of altitude than this discussion is taking place. Precisely to preserve the ability to have this discussion sort of...
Deborah poses what I think is really the pivotal question in the whole detention debate: If you design the detention regime reasonable and fairly--as I propose to do--isn't your detainable class limited to people who are actually criminals and, if so, why not just try them as criminals? I believe, largley based on Bobby's excellent work on this subject, that...
There have been a bunch of challenging and thoughtful posts on detention since yesterday evening, and there are a lot of issues to address. So once again, I beg everyone's indulgence to bunch posts and arguments together. If I'm skipping over important points in doing so, just call me on it and I'll try to circle back. Let me start with...
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...
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...
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...
Peggy and Peter, with slightly different emphases, both criticize me for focusing too narrowly on domestic legal policy. As Peggy puts it, by doing so, I "implicitly endorse the notion that the U.S. is unique in its experience of terrorism and the challenge of crafting laws to address it." It's a point worth addressing explicitly. The United States is not the first...
Peter makes two points, one with which I largely agree, the other with which I disagree. Agreement first: I have no doubt that the structures we create to fight terrorism have to be reconcilable not only with the American constitutional tradition but with international law as well. While I am skeptical that a meeting of the minds between American and European...
Let me start by thanking Chris for hosting this discussion, of which I'm delighted to be a part, and by thanking as well all of those who are participating. It really is a wonderful group, and I'm excited about the coming exchange. I wrote Law and the Long War out of a sense of frustration with the debate that has developed over...
