Tuesday, December 6, 2011

National Defense Appropriations, Korematsu, and the Law of Mechanics Liens

The current National Defense Appropriations legislation, usually a routine thing, has drawn lots of attention this year because of a provision that arguably permits the military to confine American citizens indefinitely, and without trial, if they are suspected of ties to terrorism. I took a brief look at the bill. It’s a humongous piece of legislation. The table of contents is longer than the one in most University textbooks. It's enough to make one despair. Do we really need that much legislation? It is, of course, impossible for any Congressperson to have a meaningful understanding of this legislation. Should we have our elected representatives routinely vote on things they don't (can't possibly) understand. It's my pet peeve these days.

In California, the Law Revision Commission has just spent ten years revising the mechanics lien laws. This is a fairly arcane and jumbled up part of the law, well loved by a few of us who deal with that stuff day in and day out. The result of this ten year effort was some good ideas, some bad. There was some push-back, and the end result will be a massive reorganization project, but no substantive change. It's nuts, because nobody who works with this needs it reorganized. It will just be a bunch of work for no good purpose. ...And, of course, the legislature didn't have a clue why it was passing this bill.

It's enough to make you sympathetic to those who say, enough already. Let's have part time legislatures and have them pass fewer laws, and only stuff they know sufficiently well to actually debate themselves.

So, this is all a bit off topic from the internment provision of the NDAA. However, it does kind of inform my reaction to some of the breathless chatter in the press and blogosphere about how this spells the end of American freedom as we know it. The provision which arguably permits military detention of terror suspects without trial is a stupid law. It's a bad law. The courts may or may not throw it out as unconstitutional. It will keep a bunch of lawyers occupied for a few years. But it's not the first stupid, or bad, or unconstitutional law that Congress has/will/may pass.

Is this the end of America Land of the Free. I don't think so. Let's wait 'til we see if it actually becomes law, whether the President vetoes it, or what his signing statement will look like, before we get all breathless about this. Let's wait to see what the courts do with it. And then let's wait to see what the military does with it.

In 1944, in Korematsu v. U.S. the U.S. Supreme court infamously upheld President Roosevelt's executive order to intern 100,000 Japanese American citizens without hearing or trial or charge. Freedom in America survived. Whatever happens with the internment provision in the current National Defense Appropriations Act, it's safe to say it will have virtually no effect on American freedom when compared to the Japanese internment camps. A handful of individuals might be unjustly or unfairly affected. They may, or may not have terrorist connections. They may have some good habeas corpus arguments, and they will find good lawyers to fight for them. They may win, or they may lose. The Republic will go on. Congress will keep on passing stupid laws, and occasionally some good laws. Life will go on. There will continue to be causes to fight for.

The internment provision of the NDAA is a good cause to lobby against, to march in the streets against. Let's add it to the list!

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