Mercifully, the system envisaged by the founders seems gradually to be unraveling this president’s ad hoc, arrogant and unconstitutional post-9/11 detainee policy. Here’s a masterful post on the subject that sums up where we’ve come from and how. Money quote:
All this goes to show that creating a new system from scratch is a terrible idea, especially when we already have systems perfectly well suited for the exact tasks. We have courts that can try people for war crimes, and have done so. We have courts that can try people for crimes, and have done so. We have courts that can provide an independent review as to whether someone is or is not properly held, pending hostilities, under the laws of war.
This was done in the 1760s, and can be done as easily now. Now it may not fit the outsized view of executive power some people find in emanations from penumbras in the Constitution (I’ll just note that people who think their legal theories are correct don’t go around trying to have court jurisdiction eliminated prior to getting rulings) but it fits the actual Constitution that is our patrimony, that was crafted with similar concerns regarding conflict in mind, and was based on the proposition, well tested over the centuries, that diffusion of power best serves the interests of freedom and safety.
The Dish 