Senator Feinstein has argued that current law does not allow the indefinite detention of American citizens, while the Obama Administration, Senators Carl Levin, John McCain, Lindsey Graham, Mike Lee, Rand Paul and others like Congressional Representatives Dennis Kucinich, Ron Paul and Justin Amash have argued that it does.[5]

Strange bedfellows. And yet by the nature of their allied stance, the title of this subject is refuted. There are those on both sides of the great political divide that exists in Washington who can imagine the wrong that the law may enable. As Pogo often said, "We have met the enemy and we are them".

Obama should test the law by rounding up some republican congress members and Feinstein, and throwing them in jail. If Feinstein et al are right they'll be released by court order, eventually. If they're wrong...they could stay awhile... The law potentially gives the President the powers of Saddam.

There have been 400 trials in the US where suspected terrorists were trted since 9/11. 362 convictions. What is going so awfully wrong that law makers would be willing to risk giving the executive the power of a dictator? (I say willing to risk becasue there is doubt about the law that cannot be tested until it actually tested in court, no?) Especially since the trial of Gitmo detainees have been in single digits...

Then you have Newt who yesterday said as president, he would abolish whole courts to be rid of judges whose decisions he feels are out of step with the country. How would he feel if Obama were doing that today and the courts Obama was abolishing were making rulings that Gingrich admired?
If there is an attack on the constitution it is certainly occurring by stealth from within by those who beleive democratic expression should trump consittuional rights as political whim changes. And that would be Gingrich apparently.

rickyp wrote:Obama should test the law by rounding up some republican congress members and Feinstein, and throwing them in jail. If Feinstein et al are right they'll be released by court order, eventually. If they're wrong...they could stay awhile... The law potentially gives the President the powers of Saddam.

Of course, the problem with this is that the Republican Congressmembers aren't "part of or substantially supported al-Qaeda, the Taliban, or associated forces" which is a prerequisite of their detention in the first place.

How is it a prerequisite if it doesn't have to be tested in court?

Neal Anderth wrote:How is it a prerequisite if it doesn't have to be tested in court?

I would argue it would have to be tested in court since we have Hamdi v. Rumsfeld that tells us a U.S. citizen can not be held indefinitely without basic due process protections enforceable through judicial review.

arch

Of course, the problem with this is that the Republican Congressmembers aren't "part of or substantially supported al-Qaeda, the Taliban, or associated forces" which is a prerequisite of their detention in the first place

How would they go about proving that in court? If they are held without recourse to a court?

Pursuant to the AUMF passed in the immediate aftermath of the September 11, 2001 attacks, the NDAA text affirms the President's authority to detain, via the Armed Forces, any person "who was part of or substantially supported al-Qaeda, the Taliban, or associated forces," under the law of war, "without trial, until the end of hostilities."

Taken to its extreme the law is dangerous. But the larger question is, is this a remedy for a problem that doesn't exist? Are the current laws incapable of bringing terrorists found and tried in the US to justice?
Again, there have been 400 charged with terrorism since 9/11. Successfully it seems,.

rickyp wrote:arch

Of course, the problem with this is that the Republican Congressmembers aren't "part of or substantially supported al-Qaeda, the Taliban, or associated forces" which is a prerequisite of their detention in the first place

How would they go about proving that in court? If they are held without recourse to a court?

See my response to Neal above.

Here is a pretty good review from Lawfare blog of what the NDAA does and does not do.

From the article;

Does the NDAA authorize the indefinite detention of citizens?
No, though it does not foreclose the possibility either. Congress ultimately included language in the NDAA expressly designed to leave this question untouched–that is, governed by pre-existing law, which as we explain below is unsettled on this question.

Basically what it says further on is that in Hamdi v. Rumsfeld SCOTUS said that U.S. citizens that were captured on the battlefield could not be denied juducial review. However, Padilla v. Rumsfeld which seemed to be saying something different was dropped and Padilla was tried and convicted in civilian court before the case to to SCOTUS.

It is definitely worth the read.

Since when did the opinions of judges matter? Ask Andrew Jackson and Abraham Lincoln...

Here is interesting article on how the U.S Supreme Court has approached the War on Terror habeas corpus cases. http://www.columbialawreview.org/assets ... Fallon.pdf