Before we move on to the specific questions of detention and interrogation, I'm curious about Ben's, and others', reactions to one other fundamental question. Orin Kerr, over at the Volokh Conspiracy, mentioned to me offline that perhaps some of our differences in this symposium are premised on our "very different assessments of the terrorist threat." (Orin has now...
Thanks to Chris for inviting me to participate in this great "roundtable." It has been wonderful to read the myriad perspective already. Ben's book is thoughtful and pushes the country in the direction it needs to go: policy makers need to begin to study, debate and perhaps embrace new ways to approach the War on al Qaeda. His book is a catalyst for such debate...
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...
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,...
