The Supreme Court Goes to War:Hamdi, Padilla, and Rasul
Moreover, although Justice Breyer provided the key fifth vote in favor of the authority to detain Hamdi, he also joined in full Justice Stevens's dissent in Padilla-where the majority ducked the merits of Padilla's detention on a technicality, holding that Padilla should have filed in South Carolina, rather than New York. In addition to dissenting on the procedural point, Justice Stevens emphasized that the dissenters "believe that the Non-Detention Act prohibits-and the [AUMF] does not authorize-the protracted, incommunicado detention of American citizens arrested in the United States." Along with Justice Breyer (who joined the dissent in Padilla) and Justice Scalia (whose dissent in Hamdi should have applied a fortiori to the merits of Padilla's detention), that meant that, on the merits, there were at least five votes for Padilla.Such tea-leaf-reading may help to explain why, when Padilla's case came back to the Court, the Bush Administration mooted it by having Padilla indicted on criminal charges. ...
I seriously doubt Trump is going to invoke military tribunals against any of the perps in the soft coup attempt. Doing so is a substantial (maybe all CAPS would make the point properly_ hurdle, more than a loud distraction, but a real risk of being booted and also found, by the public, to be unreasonably heavy-handed. It would be a captial S stupid move.
Thanks for the background on those cases.
Also, I agree with your conclusion, for now. That was why I also said “under current, stable circumstances.”
Some of the wilder talk on these Q-threads goes into the possibility of widespread hot insurrection if the hammer comes down on all of the people in the leftist conspiracy. Under “hot” conditions, I postulate that all bets are off—the courts wouldn’t have the bandwidth to handle all cases in the full glory of precedent and procedural detail.