But I am not presently persuaded that legislation authorizing detention in circumstances involving no breach of the criminal law and travelling beyond presently accepted categories is necessarily and inevitably offensive to Ch.III".
The provision authorizing detention does not apply narrowly to "a small segment of particularly dangerous individuals," say suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourist visa violations.
He said the more natural reading of the law at stake is that it authorizes detention "until the end of the applicable proceedings," and that "there is no justification for any of the procedural requirements" that the appeals court added.
When undocumented migrants are arrested, whether far inland or just inside the border, the space the government has to hold them is generally defined by the number of authorized detention beds.
Twelve years ago, on 13 November 2001, President George W Bush signed an order authorizing the detention of suspected al-Qaida members and supporters, and the creation of military commissions.
In September 1950, President Truman vetoed as unconstitutional a law authorizing the detention of "dangerous radicals" if the president declared a national emergency, but Congress voted overwhelmingly to override his veto and approve it.
As I wrote in an op-ed published in Politico today, this would be the first bill authorizing military detention of suspected insurgents since the McCarthy era, when Congress passed the Internal Security Act to allow the government to indefinitely detain suspected Communists.
The provision authorizes the detention of people who are part of or "substantially supported" Al Qaeda or "associated forces".
And President Bush — not President Obama — authorized the detention of an American arrested in the United States in military custody without trial for several years.
