Legal Commentary

Preventive Detention And The Supreme Court

By Big Tent Democrat

The ongoing discussion of preventive detention is likely to spill over into the discussion of President Obama's Supreme Court choice, expected to come in the next few weeks. For example, Professor Darren Hutchinson notes that Solicitor General Elena Kagan, reported to be on President Obama's shortlist, stated in her confirmation hearing that she believes indefinite detentions of enemy combatants would be constitutional:

[Kagan] echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States is at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges. . . . Last year, the Supreme Court dealt the Bush administration a setback when it ruled these alleged "enemy combatants" have a right to be heard by a judge and to plead for their freedom. But the high court left unanswered whether accused terrorists and others with suspected ties to Al Qaeda can be held for years without a trial.

This burgeoning issue will certainly make for an interesting confirmation process as we may see Obama's choice get criticized from both sides of the ideological spectrum.

Full post as published by TalkLeft on May 22, 2009 (boomark / email).