I had the pleasure of spending a few hours late last week at the tail end of what looked to have been a terrific seminar series on current challenges in the law of war. The lectures were aimed at an audience of mostly Capitol Hill staffers and delivered by experts brought in by the seminar hosts at the U.S. military’s JAG school, UVA Law School, and the International Committee of the Red Cross. You can find the agenda here .
Among other rumors buzzing about was discussion about the odds Congress would come back and legislate in a hurry after the Supreme Court hands the administration an expected loss on the question of habeas corpus for Guantanamo Bay detainees some time before the current term ends in the next month or so. (Dahlia wrote last December about oral arguments in the relevant cases, Boumediene v. Bush and Al Odah v. United States here . I’m with most Supreme Court-watching pundits, including Dahlia, in suspecting the government is not going to win entirely in its argument that the detainees there are only entitled to what they get under the current review scheme.) The speculated administration thought: Force the Democrats into a politically disadvantageous vote right before the election and kick the Gitmo can into the next administration with a vengeance.
Among other legislative peanuts already rumored to be “in the hopper”—a new national security court scheme favored (although hardly agreed on in detail) by my friends Neal Katyal and Jack Goldsmith. Coming off the delightful past seven years of experimentation in our last “new court” enterprise down at Gitmo, Neal and Jack, I know, can appreciate my deep skepticism of the likely success of another such venture (even one more thoughtfully conceived).
So, before I go on at length about why I think a new court is the wrong way to go (and any proponents must read the new Human Rights First report about how terrorism cases have worked reasonably well in the good old-fashioned criminal courts), any of my fellow bloggers care to weigh in on the odds we’ll see Congress back in the detention business before the summer is out?