It's fantasy time.
Let's go back to the days right after the Oklahoma City Bombing.
Let's imagine that on the basis of suspicions of the time and of witness descriptions of John Doe #2, Tim McVeigh was arrested, declared an enemy combatant, and subsequently held in military detention.
Let's suppose that subsequently all evidence against Mr. McVeigh was kept secret on national security grounds. Let's suppose that all of his court hearings and trial were closed to the public.
Let's suppose he was denied the lawyer of his choice because said lawyer didn't have adequate security clearance.
Go ahead, imagine.
Mr. Volokh objects to my previous post. Though, not a lawyer, I understand that in practice something is constitutional as long as the courts..and ultimately the Supreme Court...say it is. I'm also aware that such things change over time. In addition, some pretty hideous things have been deemed constitutional and have subsequently been overturned. More to the point, what is or isn't constitutional is neither objective nor constant. Or, if such an objective standard exists mere humans fail to always meet it and reasonable people can disagree.
I also know that some past legal precedent, particularly when there are few, does not automatically make an identical or especially a somewhat similar act automatically "constitutional," even in the absence of competing precedents.
But, given my layman's understanding of things, the indefinite detention of citizens arrested but not charged seems to be flirting with the boundaries of that little document.
More to the point, however, even if it *is* constitutional, or *should be* constitutional, or is *declared constitutional*, or whatever, let me suggest something else....
Maybe it is a Really Bad Idea. With great power comes great responsbility and all that. The executive branch deciding, in effect, which "rights" are granted to whom and when is something we should be incredibly suspicious of and something not to be taken lightly.
In other words, unless such a thing is really absolutely necessary, it is a Bad Idea.
In addition, as I and others have pointed out, arresting the guy and locking him in a cell when the details of his "plot" and the identities of his potential co-conspirators were not yet known also seems to have been an incompetent bungle.
