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Since we may have a few more minutes before the big news from the last days of the Supreme Court term, I had probably better offer at least a brief response to Eric's last post. As much as I love the imagery of Scalia astride a tank, that's of course not particularly what I was saying. But as I am generally a fan of the idea of agency ...

Orin, thanks. Your latest post helps me understand better why you think judges aren't well-suited to determining whether someone belongs somewhere like Gitmo. Unfortunately, now I disagree even more. Your core argument seems to be that regular judges will be freaked out, scared off, or just generally flummoxed by the kind of evidence you think ...

As I wrote a few weeks back, there are some pretty serious factual flaws in Justice Scalia's Boumediene rant. Is the 30 men ''returned to the battlefield'' one of them? Phil says yes. Orin says no. Eric says everyone makes mistakes, but the military makes less than the rest of us (more on that below). We may well never know about these ...

For what it's worth, Bill Kristol was on Fox News Sunday claiming that ''very soon,'' Sens. McCain and Graham would introduce national security court legislation in the wake of Boumediene. Kristol, of course, may be trying to create facts on the ground. All the same, Think Progress has a partial transcript and video. Here's the key ...

The court just granted cert in a case in which plaintiff—a detainee who had been held here in the United States in pretrial detention shortly after the 9/11 attacks—is seeking damages against former Attorney General John Ashcroft and FBI Director Robert Mueller (among others) based on claims that his treatment in detention violated his ...

Picking up where my last post left off. ... The policy goal is clear: The U.S. government need a detention scheme that protects as many innocent Americans as possible from becoming victims of terrorist attacks. It seems to me there are at least four kinds of people we want to think about detaining. (By putting them in categories, I don't mean to ...

Ben's very useful post throws the preventive-detention gauntlet right back at me—and that's fair enough. I'd suggested his approach conflates two separate problems: (1) getting the truck out of the detention ditch at Gitmo (its own unique mess), and (2) figuring out what kind of detention policy and laws the United States needs going forward to ...

First, thanks, Dawn, for those way too kind words about the detainees' panel at the ACS Convention. I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem ''anecdotes'' were pretty devastating: Our allies refusing to ...

Though the opinion in Munaf and Omar should give us all some pause, I'm still thinking that today'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 ...

While there's much, much more to be said on the Supreme Court's blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today—and the news there is hardly pro-detainee. In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction ...