I wanted to share a quick thought about E.D. Kain’s very recent column at Forbes, but (sorry, Erik) commenting at Forbes is a laborious process which I have never successfully completed. I’m not even going to try this time. Thus, a minipost here raising what I think is the obvious response to Erik’s concern.
How is it that that NDAA could possibly survive a Due Process challenge? Hamdi v. Rumsfeld (2004) 542 U.S. 507 seems right on point. Congress and the President can pass whatever laws they want but until and unless Hamdi gets overruled or the Constitution amended, there has to be a meaningful way for a “detained” accused “terrorist” to challenge that label before an impartial decision-maker. Granted that the NDAA seems to ignore Hamdi. But the courts aren’t going away and the only thing that awaits an easy judicial line-item veto of the objectionable parts of this law is the government actually detaining someone on its authority and thus handing that person the legal standing to challenge it.
Unless of course the government asserts State Secrets every time a detained person tries to sue to overturn the law.Report
And there-in lies the rub.Report
Such an argument didn’t prevail in Hamdi’s case; the Supremes would have none of it. No reason to think a future case would be any different.Report
I’ve read something similar. Could you expand on this thought a bit?
Is there a chance President OBama could somehow allow it to pass into law?
Thanks for the insight.Report
Yeah but more recent cases seem to have vastly expanded the scope for using State Secrets in this way.Report
Or simply does not allow the person the ability to make a challenge heard. There is no right to a lawyer for “enemy combatants”. Military agents could pick you up on the street, take you straight to Gitmo, interrogate you, and detain you for life. Explain to me where in that scenario you would make a legal challenge. Even your family and local law enforcement would have no idea where to even find you. You would just become an unsolved “missing persons” case.Report
…Or they could just put a cap in your posterior as soon as they got you to a secure location. If the government is that lawless, then there’s no point in Congress even bothering to pass a law about when they can or can’t do stuff and all of this passing laws, review of judicial precedent, and the rest of it, is all a bunch of wankery.
I don’t think we’re that far gone. Even Khalid Sheik Mohammed has a lawyer and has had access to the courts.Report
“…commenting at Forbes is a laborious process which I have never successfully completed.”
It really, really is.Report
I have at least three accounts there. It’s actually easier for me to re-register than it is to recover the login details.Report
To paraphrase – I wouldn’t comment at any site that would have me as a member.Report
Any relation to Nicholas of “The Shallows” notoriety? Thoroughly enjoyed the book.Report
Now we know the traitor’s tell. We should run them off to ……Report
Yeah, the comment section should be fixed soon. Soon, damnit!Report
One thing is for sure: they have it in the bill 4 a reason. Functionally, it may be useful to give the military personnel who would be ordered to detain a citizen an idea of “just cause.” Furthermore, once detained, access to any due process or challenge by the SC is questionable. Finally, if it is not meant to be functional, it must be tactically useful as a trial balloon for further erosion of the constitution. Regardless, anyone who does not take this seriously has his head in the sand.Report