I have no idea what Kagan thinks about this raid. But even during the argument, she sustained a fiction that the Court’s interpretation of material support to include peace efforts would be an unlikely use of prosecutorial discretion.

There’s no question that Judge Walker, like any other judge, I’d imagine, likes his rulings to hold up on appeal. That’s why he did two very specific things with the Prop 8 ruling. He established a rigorous fact pattern, because the appellate courts will have to deal with those facts in their opinions. And, he basically tailored his ruling with respect to precedent on cases decided by the one man who will determine whether his ruling will stand.

Hamdan attorney and now Acting Solicitor General Neal Katyal says that the issue is not Arar’s torture, but narrow questions of whether Arar can even ask for some relief in the US Courts.