A few final thoughts here: Stuart, I’m glad you agree that there is wisdom in letting the habeas litigation play out in the courts. I understand your potential criticisms of dealing with highly sensitive information in the federal courts. But they are just that—potential. If there is confusion about the existing rules for habeas litigation, as you say, well that’s because the Bush administration fought like hell to keep these cases walled off from regular judges. All those rounds of Supreme Court litigation weren’t much about the actual standards for hearing evidence—they were primarily about the preliminary call about if and where the evidence would be heard. Now that we have a different administration that presumably won’t keep fighting that already-lost battle, the courts will get to give developing appropriate detention standards a real go. That helps explain, I think, why Marty Lederman and others keep resisting calls to pass a preventive detention statute any time soon. The best way to find out which of these cases are the ones that will be hard for the courts to wrestle to the ground is to watch them try.
And while the lower courts hash out the Guantamo cases, the Supreme Court has finally decided to hear Al-Marri v. Pucciarelli, the case in which a guy captured inside the United States has been held in a military brig indefinitely—suspected of war crimes but never charged. What’s the Obama DoJ going to do with this one (briefs aren’t due until after the new president takes office)? I can’t wait to find out. And I can’t wait to see the Obama administration actually put on its new legal running shoes and take DoJ and the rest of the federal government out for a spin. In the meantime, many thanks for your excellent contributions to this discussion. You’ve been great, and we are grateful.
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