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Deciding not to Decide

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As Charlie Savage and Adam Serwer point out, the Senate yesterday decided to punt on the question of whether the executive can arbitrarily and indefinitely detain American citizens simply by declaring them terrorists.   While dismaying, this is part of an ongoing pattern many political scientists (including yours truly) have identified: legislators deliberately putting contested issues into the courts.    Issues like the constitutionality of arbitrary detention end up in the courts not because the judiciary is “usurping” legislative power but because that’s how legislative majorities want it.

As for how the Supreme Court will rule should they decide to take a case on the matter, their general pattern on such issues is deference to the executive branch.   It’s worth noting, however, that the Hamdi v. Rumsfeld dissent written by noted Trotskyite Antonin Scalia make clear that he doesn’t believe that the arbitrary detention of American citizens absent a suspension of habeas corpus is constitutional.   On the other hand, the only other justice to join Scalia’s opinion — Justice Stevens — is no longer on the bench, so I wouldn’t be terribly optimistic.

However, the bill passed by Senate did actually do some things to make the expansion of arbitrary executive power worse, as Adam notes:

The compromise amendment however, does nothing to address the Obama administration’s concerns about the bill. The Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all said that the bill’s provision mandating military detention of non-citizen terror suspects apprehended on American soil would interfere with terrorism investigations and harm national security. That hasn’t changed. The question is whether or not the administration is willing to make good on its threat to veto the bill, or whether it was just bluffing.

I’m afraid I’m going to have to go with “just bluffing.”

…Obama is reiterating his opposition, which makes a mere bluff less likely; let’s hope I was wrong.

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