Jane I had precisely the same reaction when I heard about the role ALEC played in the Arizona immigration debate. It was a total Sesame Street AHAH moment for me. But I think the other thing at play here is that Obama has to be wrong about everything all the time. And so when Bush interrupts a dirty bomb plot he is tough on terror. When Obama disrupts a Christmas Day plot it shows he is weak on terror. Bush’s terror trials were meant to showcase the american justice system. Obama’s would have endangered us all . . .

and, emblematic, too, of a culture that has come to view law as a series of tricks and lies to protect the guilty.

Well but just to stir up some last-minute differences, I think the Admin really TRIED to Do It with respect to the KSM trials. That was the line in the sand. Holder staked his whole reputation on it. The only thing more depressing than an unwillingness to defend these principles is that when they attempt to defend them, it’s a slaughter anyhow . . . .

One of the most important arguments in Jonathan’s book is that the enduring lesson of Gitmo is that habeas corpus matters now more than ever; it was habeas and the courts that checked the overreach.

Here is that piece http://www.nytimes.com/2011/04/28/opinion/28jaffer.html

That hadnt occurred to me but you are right

you’re reminding me of John Paul Stevens’ great speech about prosecutorial misconduct. About how the incentives have gotten so wonky there’s no voice for the defense side anymore http://blogs.wsj.com/law/2011/05/03/stevens-urges-congress-to-crack-down-on-prosecutorial-misconduct/

we should also probably do divorce cases before military commissions

So we have agreed that Obama should have launched a serious investigation, tried KSM in NYC and renounced state secrets. He didn’t. Is there anything he might still do to reverse gears? Or, better, whats the one thing he should do tomorrow (or has he done it wrt Warsame?)

in what way did the media mess it up?

Jonathan is there any way to situate your plea for a robust habeas right in the renewed zeal for true constitutionalism that is happening just now? By which I mean, you do such a nice job reminding us why the framers felt as they did about habeas . . . might this be an issue on which there could be new interest/passion/devotion? And no this is not an entirely fatuous question.

I wonder what other people think about the impact of the Abu Ghraib photos. Jonathan talks about this on pp 64. I think in hindsight that they may have done more to normalize/legitimize the abuses we are discussing than not. I think it became part of the Jack bauer torture porn zeitgeist that has made abuse a part of the new normal

I mean his original defense of the decision –

Do you think there is a way to make these arguments successfully? I thought Holder did a pretty good job defending the KSM decision but he seems to have persuaded nobody . . .

excellent question

Do you think most Americans still believe that Gitmo housed the “worst of the worst” or has it become clear yet that these were the “shot in the butt” folks?

Jonathan what type of accountability might have remedied that do you think? Truth Commission? Criminal trials? In hindsight what might Obama have done to de-legitimize the post 9/11 legal regime?

I cant think of another reason — outside NIMBYness — to explain how a proposition that was uncontroversial in 2002, that we convict and hold terrorists in American courts and jails, has become unthinkable.

The state secrets reversal is arguably more awful because it is premised on the indefensible idea that if we all just turn the page and move forward everything will revert to pre-9/11 on its own. As Jonathan’s book illustrates, that is not happening

Jonathan do you really think that the public felt that Obama’s statements about restoring the rule of law ended the subject? I think most of them simply felt terrified at the prospect of closing Gitmo and housing terrorists in their backyards?