He also said that it really needed to be decided on a case by case basis. Isn’t that effectively just saying that there needs to be an equivalent of the combat status reviews that were happening in Guantanamo? And weren’t those originally setup as an alternative to habeas?
That habeas rights must be decided on a case-by-case basis does not necessitate the creation of Bagram CSRTs. It simply means that a federal district court shouldn’t decide that everyone at Bagram is entitled to habeas (or that no one is). Individuals can still file petitions for habeas and the district court can review, case-by-case, whether those individuals are entitled to get beyond the petition stage. I think the point is that the Boumediene factors will not yield the same result for everyone in a particular category–geographical or otherwise–so courts have to apply the factors to individuals, not groups.