Is That Legal?

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July 11, 2007

The Bad Idea In Katyal's and Goldsmith's Otherwise Intriguing Proposal

ack Goldsmith and Neal Katyal are both super-smart guys, and their proposal for a "Terrorists' Court" in today's New York Times has a lot going for it. But here's the one thing I don't understand. If they're prepared to permit U.S. citizens to be preventively detained under "a conspiracy theory that comes close to criminalizing group membership," then why should it give anyone comfort that a life-tenured federal judge will be presiding rather than a military officer?

Preventive detention of U.S. citizens on the basis of nothing more than membership in a group is a really, really bad idea. It was a bad idea when the group was a Shinto sect, and it was a bad idea when the group was the Communist Party. It's a bad idea now.

I'm surprised to see lawyers and scholars of their abilities promoting it.

Posted by Eric at July 11, 2007 9:06 PM