Thursday, January 12, 2012

Sorting them out

"As the dissenters warned and as the amount of ink spilled in this single case attests, Boumediene's [Boumediene v. Bush, 553 U.S.723, 787 (2008)] airy suppositions have caused great difficulty for the Executive and the courts. See 553 U.S. at 824-26 (Roberts, C.J., dissenting); id. at 827-28 (Scalia, J., dissenting). Luckily, this is a shrinking category of cases. The ranks of Guantanamo detainees will not be replenished. Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained-even from high-value detainees-is outweighed by the systemic cost of defending detention decisions. Id. at 828 (Scalia, J., dissenting). While the court in Boumediene expressed sensitivity to such concerns, it did not find them 'dispositive.' Id. at 769. Boumediene's logic is compelling: take no prisoners. Point taken." Brown, J., Latif v. Obama, No. 10-5319 (D.C. Cir., October 14, 2011), pp. 52-53 (via Stephen I. Vladeck at ACSblog)