Marty Lederman has a nice post on Balkinization that responds to a Washington Post op/ed by Jack Goldsmith and Eric Posner. Here’s a taste of Lederman:
To their credit, Goldmsith and Posner (like O’Connor) recognize that the wartime-incapacitation detention model is under strain here, because this conflict may be indefinite, and not have an obvious end. Thus, they propose that "Congress should require a rigorous process for determining the status of enemy combatants," with "periodic review, perhaps yearly, to determine whether the detainee remains dangerous and thus warrants continued detention."
This is a good idea as far as it goes. But what about those hundreds of detainees who were never dangerous in the first instance?