Padilla decision: U.S. citizen can be held without charge as "enemy combatant"

A three-judge panel of the U.S. 4th Circuit Court of Appeal has reversed a lower-court ruling that Jose Padilla (, a U.S. citizen arrested on U.S. soil held in military detention as an “enemy combatant” ( since 2002, must be either charged with a crime or released:

See also


It ain’t all that bad . . . the ruling can still be appealed to the full 4th Circuit – and, given the constitutional importance of the issues, it would not be inappropriate to appeal an adverse ruling to the Supreme . . . oh, shit. :frowning:

What really gets me is that Judge Luttig (mentioned in the second story linked about as being on Bush’s short list for Supreme Court appointments :eek: :eek: :eek: ) wrote an opinion:

  1. Assuming that Padilla is closely linked with al-Qaeda, a matter that has yet to be proven in any court of law (and might never be, if this ruling sticks); and

  2. Characterizing al-Qaeda as “an entity with which the United States is at war.” What the fuck? When did Congress ever declare war on al-Qaeda? And how, legally speaking, could the U.S. be “at war” with a non-state entity?

Anyway, issues for debate:

  1. How does this ruling square with the right of habeas corpus under the U.S. Constitution?

  2. How does this ruling square with the “due process of law” requirement of the Fifth Amendment?

  3. Should a person’s status as a U.S. citizen or non-citizen make any difference WRT to the above?

  4. WRT to the above, should it make a difference whether a person is arrested and/or held on U.S. soil or elsewhere?

  5. What does this ruling mean WRT civil liberties, generally, in the U.S.? Does the government now have the authority to classify and detain anyone as an “enemy combatant” without judicial review?

This will have to get reversed. We are not at war with al Qaeda. The whole basis for the decision is false. This is right wing judicial activism, pure and simple.

All true. Why does any of that mean it will have to get reversed? Who’s gonna reverse it?

The Supreme Court, I hope.

That’s certainly my initial reaction as well.

The problem I am having is understanding how the AUMF enacted on 9/18/01 is to be interpreted. Can the Congress invoke the war powers act, as they have, and effectively suspend the writ of habeas corpus? I find that hard to believe…

And yet the Constiution does say that Congress can do so:

OTOH, the SCOTUS did say in Hamdi:

As the OP points out, this administration is considering putting Judge Luttig on the Supreme Court.

It violates it. John Mace’s post defines the circumstances in which Habeus Corpus may be suspended - rebellion and invasion. So while Habeus Corpus may be suspended in the presense of military forces, it cannot be legally suspended because of the threat of military forces. If that were true, then the right would be meaningless; it’s impossible to imagine a situation where there is no possible threat of attack, so the right could be susupended at any time.

Violates it. The Constitution says “nor shall any person … be deprived of life, liberty, or property, without due process of law”. This decision says a citizen can be held indefinitely without due process.

Or maybe AG Alberto Gonzalez. At any rate, we know they want Judge Roberts as Chief Justice. Now, how is a Supreme Court composed of one Ford appointee, three Reagan appointees, two Bush I appointees, two Clinton appointees, and two Bush II appointees likely to rule on this issue?

[a.g. gonzalez]

Yes . . . what is your point?

[/a.g. gonzalez]

It seems to me that Bush is trying an end-around by labeling a US citizen as an “enemy combatant”. He be better off politically and legally by having them arrested as traitors and finding two people to testify as to the same overt act.

The opinion, while written by Judge Luttig, was unanimous, joined by both of the other judges. And they happen to both be Clinton appointees.

Which part of that was supposed to make us feel better?

So what?

Legally I can see, but why would he be better off politically?

As a word, “Traitor” is more loaded than “enemy combatant”. No one likes a traitor. Start comparing Padilla to Benedict Arnold and see his support taper off.

I’ve heard of no one who “supports” Padilla. The guy is a sub-human waste of genetic material. However, some of us support the Constitution, which seems to be on of the more horrible victims of the President’s war on terror. Don’t confuse supporting American ideals and supporting Jose Padilla.

You’re right, I meant to say “Padilla’s case”. See what happens when you post after drinking cough syrup.

I’m sorry, but I fail to see how Arnold compares favorably. Apart from being Anglo-Saxon.

I’m sure it makes you feel a lot worse.

So it puts the lie to your earlier assertion that this was “right wing judicial activism, pure and simple.”

I don’t for a second think it’s as simple as that.

How can Arnold be Anglo-Saxon? He’s Austrian by birth.