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Why a Constitutional Law Professor Should Not Sign an Unconstitutional Military Detention Bill

Sunday, December 18, 2011 By Ralph Lopez, War Is A Crime | News Analysis
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Why a Constitutional Law Professor Should Not Sign an Unconstitutional Military Detention Bill

President Barack Obama speaks at the White House Tribal Nations Conference at the U.S. Department of the Interior in Washington, Dec. 2, 2011. (Photo: Doug Mills / The New York Times)

You don't need to be a meteorologist to know if it's raining outside, and you don't need to be a constitutional scholar to know that permanent wartime powers amounts to the overthrow of the Bill of Rights of the US Constitution.  

Common sense alone says you might have unlimited powers in a war of limited duration, or you might have limited powers in a war of unlimited duration, but the plain language of the Constitution tells us you cannot have both: unlimited powers in a war of unlimited duration.  

This is the question which has been ignored since 9/11.  Instead of addressing it, the Congress, and the Executive, are jumping on a flawed Appeals Court decision and rushing to codify it.  But Appeals courts make bad rulings all the time, and there is no rush to codify the error.  Judge Luttig may not be a bad man.  But his place in history may be assured, and it is not an enviable one.  Could it be that his anger was not misplaced?

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Why a Constitutional Law Professor Should Not Sign an Unconstitutional Military Detention Bill

Sunday, December 18, 2011 By Ralph Lopez, War Is A Crime | News Analysis
  • font size decrease font size decrease font size increase font size increase font size
  • Print
Why a Constitutional Law Professor Should Not Sign an Unconstitutional Military Detention Bill

President Barack Obama speaks at the White House Tribal Nations Conference at the U.S. Department of the Interior in Washington, Dec. 2, 2011. (Photo: Doug Mills / The New York Times)

You don't need to be a meteorologist to know if it's raining outside, and you don't need to be a constitutional scholar to know that permanent wartime powers amounts to the overthrow of the Bill of Rights of the US Constitution.  

Common sense alone says you might have unlimited powers in a war of limited duration, or you might have limited powers in a war of unlimited duration, but the plain language of the Constitution tells us you cannot have both: unlimited powers in a war of unlimited duration.  

This is the question which has been ignored since 9/11.  Instead of addressing it, the Congress, and the Executive, are jumping on a flawed Appeals Court decision and rushing to codify it.  But Appeals courts make bad rulings all the time, and there is no rush to codify the error.  Judge Luttig may not be a bad man.  But his place in history may be assured, and it is not an enviable one.  Could it be that his anger was not misplaced?