Insta-experts... and the people push back.

If you've got some time, it's worth reading this hypothetical, set up by Law Prof. Orin Kerr ... and then following the shellacking he gets in the comments. Some are better written than others (all sic), but ultimately, the pushback seems to consist of this:

Most common folk aren't fans of legal trickery - they want the guilty punished and the innocent set free. They also, however, support the bill of rights - and an officer of the court should do so as well. If the choices (as here) are "detain an alleged terrorist indefinitely with no trial" or "try a terrorist in open court where the government must present its evidence", you should always support the later option.

ps. You know you're not convincing anyone with your logic when you resort to emotional appeals like this one: Cassandrus, as the the son of a concentration camp survivor, whose grandmother and uncles were gassed at Auschwitz, I would appreciate it if you thought twice about making casual and unexplained comparisons of my views to those of the Nazis.

Ah, but Cassandrus has some suffering in her background too; she doesn't just concede the point:

I lost a grandparent in Buchenwald. Doesn't change the fact that the theory you propose comports rather well with Schmitt's theory of the exception.

Just to make it clear though, my problem with Schmitt, as far as it relates to this, is not that he was a Nazi. It was that he was wrong--good faith wrong even--and that carving out gigantic exceptions the way he does makes one a handmaiden of power.

Really, read the whole thing. Even if you're not a lawyer. (Or maybe especially if you're not a lawyer. Don't concede time-tested American principles based on fear, or allow others to do so on your family's or country's behalf.)

Here's two to give you a quick taste of the argument:

Does the following properly summarize Orin's hypo:

Due to unconstitutionally acquired evidence, a number of foreigners who were preparing to detonate a dirty bomb cannot be prosecuted. It would be bizarre to set them free of evict them, so they should be detained on the basis of the unconstitutionally acquired evidence. Apparently we are balancing constitutional rights here. It seems to me that if the evidence was acquired through for instance torture it seems equally as bizarre to use the tainted evidence as the basis for the detention of these foreigners. If that's the case, I am wondering were Orin would draw the line. An unconstitutional search is okay, so not reading their Miranda rights would be to I assume.

and

The problem with Orin's hypothetical: No one would ever know whether the "detained" person had such great evidence of guilt against him. Instead, the evidence regarding at least the marginal cases is kept confidential - national security, we'd be told.

Orin's hypothetical gives us a God's eye view of the evidence. But our government will not, at least in the marginal cases, even give us a bird's eye view.

Here is why I hope Orin's view doesn't become the law: I don't trust our government to detain people and to keep evidence of guilt hidden. And why should we trust the current administration? Really. How many more lies need to be exposed? How much more incompetence needs to be exposed before we begin to become skeptical of those in power?

I'm not a partisan person, by the way. I'd no sooner trust the previous administration to detain people without due process.

-----------
ADDED: I also liked this reminder about picking and choosing issues in the quest for "strict constitutional interpretation":

If you're for ignoring the law and getting the "right result" in some cases, it really crumbles credibility when you hold out for strictly interpreting the constitution in other areas. You can always claim that your exceptions to the rules are more important, but that's a matter of opinion.

He means well, I'm sure he does...