JMoore of Jurispundit writes in response to my earlier customary international law post: Good point. But how fruitful would an examination of CIL been? The argument that CIL provides for habeas and other rights for non-state actors in my opinion thinly reinforced. Do you disagree?
I agree with the reader to the extent that a CIL basis for U.S. habeas rights present in the constitution and by statute would not have been fruitful. In essence, the Judge's writings on habeas issues was, and should be, an assessment of U.S. habeas law. But I also believe that there is a very plausible argument that CIL DOES provide for greater due process than was given and that Judge Green prescribed. One difficulty the judiciary is having in this circumstance is an lack of jurispudence dealing with non-state actors in a armed conflict ("war") setting. This is precisely because the U.S. does not have much experience in this realm. Other regions (think Northern Ireland among many, many others) have much more experience with non-state terror and CIL in the realm of international humanitarian law generally could definitely enhance detainee rights if examined.
Now it is also a plausible argument (a la Jack Goldsmith and Curtis Bradley) to say that CIL cannot be applied in U.S. courts. Either way you cut it, Judge Green's REASON to not examine the CIL claims was faulty.