Lots of mockery among civil libertarians of this Eugene Volokh argument in re: the Gitmo detainees case, but I have a serious question. Doesn’t the constitution specifically contemplate that circumstances might arise under which the government can suspend the writ of habeas corpus as an emergency measure? If so, isn’t the right thing to say that if this sort of unlikely scenario were to emerge that congress could cross that bridge when we come to it through a suspension? It’s very hard to see how under the actually obtaining circumstances, or anything remotely resembling them, that the Court’s ruling will create a serious burden. That seems more than good enough to me.
UPDATE: See also Kieran Healy.