More Worthy Reading, over at the Volokh blog.

David Kopel, who's described as "a lifelong registered Democrat but a confessed small government libertarian at heart" and admits to caucusing for Obama in February 2008, has grave concerns over the National Defense Authorization Act for Fiscal Year 2012, which has passed in the House and is currently before the Senate.

One section of the bill gives the President the authority to indefinitely detain American citizens, picked up on American soil, because they are allegedly supporting the enemy.
...
Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

The blog comments there tend to typically attract the non-bottom-feeders, rare on many popular "law" blogs. This one seems worthy of reprinting in full, particularly because the mainstream media does not appear capable of delivering such news in accessible, bite-size format.

Steve says:
Democrats were 35–15 in favor of the amendment that would have eliminated this section; the Republican vote was 2 in favor and 44 against. The two Republicans in favor were Mark Kirk of Illinois and Rand Paul of Kentucky; I understand Sen. Paul spoke eloquently against this section of the bill.

There is a somewhat Orwellian component to the justification of the provision permitting military detention of U.S. citizens; the proponents argue that nothing in the disputed section of the bill would expand the already-existing powers of the President. The reason the argument is Orwellian is that the Government has taken great pains to prevent the courts from ruling that it does not have the power in question, so pointing out that the courts have not yet ruled against the President on this issue is a bit disingenuous.

The only modern precedent for this authority is the case of Jose Padilla, someone who may or may not deserve our sympathy. It is undisputed that Padilla is an American citizen who was arrested on U.S. soil and committed to military custody for more than three years without a trial. The decision to commit him to military custody came two days before a court was to rule whether Padilla was being properly held in civilian custody under the material witness statute, which was a creative application of the law at a minimum.

Padilla’s court battle made it all the way to the Supreme Court, which ducked the issue on technical grounds and obligated Padilla to re-file. When he did so, the federal district court ruled in his favor, only to have the Fourth Circuit Court of Appeals overturn that ruling. Padilla naturally appealed to the Supreme Court again, whereupon the government suddenly procured a civil indictment against him — after arguing for years that it would be terribly misguided to require the government to try Padilla in civilian court. This was a fairly transparent attempt to prevent the case from going before the Supreme Court and to ensure the Fourth Circuit’s favorable decision would not be overturned. Indeed, the same Fourth Circuit judge who wrote the ruling (a Supreme Court short-lister) noted that the government had not offered any plausible explanation at all for the sudden decision to transfer Padilla to civilian custody.

In any event, the government’s ploy worked. The Supreme Court declined to hear the case on the grounds that it had become moot. Padilla was tried on conspiracy charges and found guilty. And now Senators who want the President to have the authority to lock up U.S. citizens in military custody without a trial are able to argue, somewhat truthfully, that the President already has the authority to do this (because no one stopped him in the Jose Padilla case) and therefore it’s no big deal.

Personally, I do not think the number of U.S. citizens who are loyal to al-Qaeda or the Taliban is nearly large enough to warrant us thinking about shredding the Constitution in order to lock them up indefinitely without a trial. If a citizen like Jose Padilla is plotting a terrorist act on behalf of al-Qaeda, charge him with treason, conspiracy, or whatever else you like and then put him on trial. This is how we handled Timothy McVeigh, after all, and the world didn’t come to an end. And even if someone like al-Awlaki who can’t reasonably be brought before U.S. courts presents a different case, that’s not what we’re talking about here.

You have to wonder, if what Sen. Levin alleges is true, if this is just some type of political game-playing by the Obama administration, that will later -- in true campaign mode -- trot out facts that the Republicans evilly voted down the measure supported by Udall, which Democrats unanimously approved and which the (evil, evil!) Republicans voted down...

I also like these ones:

Cornellian says:
re. "I’m curious whether this statute would be constitutional as regards detention of U.S. citizens on American soil."
Such concerns are a quaint artifact of pre 9/11 thinking. Only by granting the King President limitless authority to detain anyone, without charges or trial, forever, can we be safe from The Terrorists.

and

BL1Y says:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

When we trade liberty for security, we’re keeping our right to life, but giving up our right to liberty. When we keep liberty, we might lose our lives, but we at least keep our right to it.

and

Arthur Kirkland says:
Who are we at war with?
Everybody!

Where are we at war with them?
Everywhere!

When are we at war with them?
Every day!

Why are we at war with them?
Everything!

The lack of anticipation of blowback is, as always, quaint.

FINALLY:

Owen H. says:
Re. "Americans are free to travel overseas and enlist in foreign armies. We hope they will make the right decision. After Pearl Harbor thousands of German American and Italian American citizens ended up in Axis armies, but we did not make a big deal of it. Two citizens, Huber Hans Haupt in 1942 and Jose Padilla in 2002 returned to the US in civilian clothes pretending to be civilians while they were actually members of the regular armed forces of a foreign country that was at war with the US, and in both cases their mission was to enter the US pretending to be civilians (which by definition makes them a military spy) and then blow something up (which makes them a saboteur)."

We have this tradition where we require that the government actually prove such things.

Personally, that's the America I'd like us to return to...