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View Diary: Why a Constitutional Law Professor Cannot Sign NDAA, Allowing Military Detention of Americans (64 comments)

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  •  This war has been going on, so courts have (0+ / 0-)

    had occasion to discuss whether its length makes any difference to the detention power.

    If Ralph's analysis were correct then we'd expect some court to have noted, if only in passing, that the indeterminacy of the war's end could make a legal difference.

    •  oh, they have (1+ / 0-)
      Recommended by:
      johnny wurster

      I'm pretty sure the issue was raised in Padilla's case, but I'd have to go back  and double check.  I think SCOTUS talked about it in Boumediene, too.  But ultimately, the decisions have all been made on other grounds, that's true.

      "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

      by jlynne on Thu Dec 15, 2011 at 04:43:36 AM PST

      [ Parent ]

      •  Good memory. (2+ / 0-)
        Recommended by:
        Kimball Cross, Catte Nappe

        The duration of the war is mentioned in Boumediene:

        Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury.

        That seems like a practical point, thouigh: 'other wars ended soonish, so we didn't have to investigate the constitutionality of various iterations of the war power.  This one may go on for awhile, though, so we'll probably have to do some work to figure out the scope of the war power.'

        But that mark this war as different in kind such that precedent is no longer controlling.  It just tells us that novel questions may come up that the court will have to adjudicate.

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