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Most of you have probably already seen Linda Greenhouse's articles yesterday and today, reporting that in last week's Kennedy case involving the death penalty for child rape, the court, its clerks, the parties, the several amici, and the solicitor general all somehow overlooked the fact that Congress enacted a statute two years ago that provides a ...

OK, so perhaps I went a bit overboard with the Ouija board metaphor. No, I do not think that the military's detention of the Uighurs was just random, or whimsical, or the product of consultations with the Easter bunny. More to the point, I, too, accept Eric's assumption—for how could anyone deny it?—that ''the U.S. military is more ...

It's not a logic game, Eric—it's simply good, old-fashioned judicial review. The role of the ''C-Box''—the court—is not to determine whether the detainee (not a ''criminal suspect,'' by the way) is in fact telling the truth, but instead to determine (i) whether the ''M-Box'' is relying on a valid legal theory to detain the prisoner; and (ii) if ...

Can the president indefinitely detain someone who has no connection to al-Qaida and who has not engaged in any belligerent acts against the United States?Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush administration had ...

In October and early November of 2002, numerous lawyers with the Defense Department advised General Counsel Jim Haynes that the contemplated use of severe ''SERE'' interrogation techniques would likely violate the torture statute and the Uniform Code of Military Justice. The JAGs further advised that the techniques would appear to violate the ...

I am heartened by Ben's agreement that any legislative initiatives should await the next administration and should not be driven by election-year pressures (as the MCA was). Such delay would also have the virtue of allowing the legislature to see just how the habeas system is working here and what might be needed to supplement the district ...

Both before and after the court's decision yesterday in Boumediene, I wrote that if the Guantanamo detainees are afforded habeas rights, there would be (and is) little reason to consider any legislative response: ''Because the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, ...

The second question presented by the Boumediene petitioners was the substantive question—one that the trial judges will now consider on habeas—of who, exactly, the president is authorized to indefinitely detain in the conflict against al-Qaida. (I have much more to say about the merits of this question, and its application to the Bosnian ...

As I noted in my previous post, the two most important questions the court did not answer are:1) Would habeas rights extend to alien detainees held in foreign locations other than Guantanamo (such as Bagram)?and2) What is the substantive standard for who may be indefinitely detained? The court was not, however, completely silent on these ...

The Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at Gitmo have a constitutional right to petition for habeas corpus and that the DTA/MCA process of D.C. Circuit review from CSRT decisions is not an adequate alternative to habeas. Thus, the petitioners will be able to have habeas petitions considered in district ...