President Obama’s proposal for a new legal system in which terrorism suspects could be held in “prolonged detention” inside the United States without trial would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.
Mr. Obama has so far provided few details of his proposed system beyond saying it would be subject to oversight by Congress and the courts. Whether it would be constitutional, several of the legal experts said in interviews, would most likely depend on the fairness of any such review procedures.
Ultimately, they suggested, the question of constitutionality would involve a national look in the mirror: Is this what America does?
“In our constitutional system,” Mr. Obama said, “prolonged detention should not be the decision of any one man.”
But Mr. Obama’s critics say his proposal is Bush redux.
Mr. Obama’s proposal, Professor Hakimi said, appears to be “an aggressive approach that is not commonly taken in other Western developed countries.”
In a letter to the president on Friday, Senator Russ Feingold, Democrat of Wisconsin, said he was not sure Mr. Obama’s idea would prove constitutional, and added that “such detention is a hallmark of abusive systems that we have historically criticized around the world.”
