I’m with Chris – hard to focus today on anything other than the presidential election. (Indeed, I’m at pains to tear my eyes away from Ben Smith’s blog over at Politico, which is keeping anecdotal tabs on voter turnout here in the United States. His latest post as of 11:57am EST: “The Obama aide who told me last night that...
While the Bush Administration may have reconciled itself to leaving office with the detention center at Guantanamo Bay still up and running, the U.S. federal courts continue pushing the detainees’ cases ahead toward resolution. After briefing by the parties on their competing definitions of “enemy combatant,” U.S. District Judge Richard J. Leon yesterday announced a ruling: Enemy combatant’ shall mean an...
Kristen’s last post concludes by opening the giant can of worms at the heart of international human rights law: “Farer’s analogy [between recent U.S. counterterrorism measures and Latin American practices in the 1980’s] shows weaknesses in the [human rights] compliance system generally…. [B]ecause it remains an issue of domestic competence as to whether human rights are enforced in the face...
There’s so much domestic news these days it would’ve been easy to miss Eric Lichtblau’s story in yesterday’s New York Times about legislation introduced in Congress just before the August recess that would substantially define the scope of the United States’ war with Al Qaeda, et al. Indeed, it’s not clear why the Times itself finally just realized the significance...
The sole virtue of being the last among bloggers to weigh in on yesterday’s Hamdan verdict is having a chance to read what everyone else is saying. The New York Times, the ACLU, Human Rights First and others are pretty scathing in their criticism: don’t be fooled by the patina of fairness evinced by the split verdict, this system...
Well, the Hamdan verdict is in: guilty on five counts of material support to a terrorist organization, but significantly for cases to come - not guilty on the far broader charge of conspiracy. The Times’ story is here. Sentencing to follow this afternoon. This is hardly the end of the story. There will certainly be appeals. But...
A quick note on the two latest case examples on the table in our ongoing detention debate. First, Mr. Al-Marwallah’s case is a prime example of why we shouldn’t make broad new detention policy based on the problems of Gitmo alone. Mr. Al-Marwallah may not be prosecutable for taking terrorist training pre-2001 since the criminal material support statute in...
There seems to be something like consensus among us that the toughest remaining unanswered question relates not so much to procedure, but to the substance of who may be detained. And we have two very instructive approaches to this question – either asking who may be detained under current law (below, Marty calls our attention to Judge Wilkinson’s take,...
Ben’s responsive post last night on the kind of detention review he favors (other than habeas) sets up perfectly what I take it is to be our topic for the day: whether a new detention statute is needed to resolve the situation at Guantanamo Bay. And between prior posts, recent Attorney General speeches, and the reality more or less...
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...
First, thanks to all for the great opening posts, and more broadly to Chris, Peggy, and the whole Opinio Juris crew for welcoming me into the fold. I’m delighted to join such a dynamic forum, and very much look forward to our exchanges ahead. Ben suggests as a central topic to kick of this week’s discussion a broad structural question: “Does...
Though the opinion in Munaf and Omar should give us all some pause, I'm still thinking that yesterday's Boumediene opinion comes as close as I've seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security. The majority opinion doesn't just embrace a functional approach to resolving questions of the...
