NDAA, Due Process, and the Sixth Amendment
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.