EUGENE VOLOKH has a good response to the “not in our name” petitioners, as well as a critique of some arguments used to support the Administration’s position on detention of Americans as enemy combatants. Here’s an excellent point about the Administration’s position as a sort of Executive judicial activism:

But let there be no mistake about this: Here it’s the government, not the criminal defendant, that is seeking a nontextual, and fairly nontraditional, reading of the Constitution. Maybe the government is right, but the arguments of its critics cannot be rebutted simply by denouncing some “Warren Court set of rights” — it’s the Framers’ set of rights that’s clearly at issue here.

Yes, the Administration is trying to make new — and in my opinion, very bad — constitutional law here.