### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [September 10, 2005, 9:08pm UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/1 "2005-09-10T21:08:13Z")
A three-judge panel of the U.S. 4th Circuit Court of Appeal has reversed a lower-court ruling that Jose Padilla ([http://en.wikipedia.org/wiki/Jose\_Padilla](http://en.wikipedia.org/wiki/Jose_Padilla)), a U.S. citizen arrested on U.S. soil held in military detention as an “enemy combatant” ([http://en.wikipedia.org/wiki/Illegal\_enemy\_combatant](http://en.wikipedia.org/wiki/Illegal_enemy_combatant)) since 2002, must be either charged with a crime or released: [http://news.yahoo.com/news?tmpl=story&u=/ap/20050910/ap\_on\_re\_us/enemy\_combatant\_15](http://news.yahoo.com/news?tmpl=story&u=/ap/20050910/ap_on_re_us/enemy_combatant_15)
> [@](#):
>
> “The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al-Qaida, an entity with which the United States is at war,” Judge J. Michael Luttig wrote. “We conclude that the President does possess such authority.”
See also [http://news.yahoo.com/news?tmpl=story&u=/chitribts/20050910/ts\_chicagotrib/courtholdingpadillaislegal](http://news.yahoo.com/news?tmpl=story&u=/chitribts/20050910/ts_chicagotrib/courtholdingpadillaislegal).
:eek:
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. ☹
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?
---
### Author:  [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)
#### Post date: [September 10, 2005, 9:15pm UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/2 "2005-09-10T21:15:04Z")
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.
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [September 10, 2005, 10:06pm UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/3 "2005-09-10T22:06:48Z")
> [@Diogenes the Cynic](#):
>
> 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?
---
### Author:  [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)
#### Post date: [September 10, 2005, 11:28pm UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/4 "2005-09-10T23:28:53Z")
The Supreme Court, I hope.
---
### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [September 10, 2005, 11:41pm UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/5 "2005-09-10T23:41:52Z")
> [@Diogenes the Cynic](#):
>
> 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.
That’s certainly my initial reaction as well.
The problem I am having is understanding how the [AUMF enacted on 9/18/01](http://www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm) 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…
> [@](#):
>
> SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
>
> (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
>
> (b) War Powers Resolution Requirements-
>
> (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
>
> (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
And yet the Constiution does say that Congress can do so:
> [@](#):
>
> “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (Article One, section nine).
OTOH, the SCOTUS did say in [_Hamdi_](http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld):
> [@](#):
>
> Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an unlawful combatant. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge.
>
> \
>
> Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to indefinitely hold a U.S. citizen without basic due process protections through judicial review.
---
### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [September 10, 2005, 11:44pm UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/6 "2005-09-10T23:44:55Z")
> [@](#):
>
> The Supreme Court, I hope.
As the OP points out, this administration is considering putting Judge Luttig on the Supreme Court.
---
### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [September 11, 2005, 12:07am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/7 "2005-09-11T00:07:32Z")
> [@](#):
>
> 1. How does this ruling square with the right of habeas corpus under the U.S. Constitution?
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.
> [@](#):
>
> 1. How does this ruling square with the “due process of law” requirement of the Fifth Amendment?
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.
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [September 11, 2005, 12:22am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/8 "2005-09-11T00:22:46Z")
> [@Little Nemo](#):
>
> As the OP points out, this administration is considering putting Judge Luttig on the Supreme Court.
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?
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [September 11, 2005, 12:25am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/9 "2005-09-11T00:25:50Z")
> [@Little Nemo](#):
>
> \*t’s impossible to imagine a situation where there is no possible threat of attack, so the right could be susupended at any time.
[a.g. gonzalez]
Yes . . . what is your point?
[/a.g. gonzalez]
---
### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [September 11, 2005, 1:10am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/10 "2005-09-11T01:10:59Z")
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.
---
### Author:  [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)
#### Post date: [September 11, 2005, 1:23am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/11 "2005-09-11T01:23:55Z")
> [@BrainGlutton](#):
>
> 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?
The opinion, while written by Judge Luttig, was unanimous, joined by both of the other judges. And they happen to both be Clinton appointees.
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [September 11, 2005, 1:35am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/12 "2005-09-11T01:35:47Z")
> [@Mr. Moto](#):
>
> 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?
---
### Author:  [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)
#### Post date: [September 11, 2005, 1:52am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/13 "2005-09-11T01:52:54Z")
> [@Mr. Moto](#):
>
> The opinion, while written by Judge Luttig, was unanimous, joined by both of the other judges. And they happen to both be Clinton appointees.
So what?
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [September 11, 2005, 1:57am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/14 "2005-09-11T01:57:44Z")
> [@SaintCad](#):
>
> 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.
Legally I can see, but why would he be better off politically?
---
### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [September 11, 2005, 2:21am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/15 "2005-09-11T02:21:11Z")
> [@BrainGlutton](#):
>
> 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.
---
### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [September 11, 2005, 3:04am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/16 "2005-09-11T03:04:40Z")
> [@SaintCad](#):
>
> 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.
---
### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [September 11, 2005, 5:42am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/17 "2005-09-11T05:42:07Z")
> [@Hamlet](#):
>
> 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.
---
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [September 11, 2005, 6:53am UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/18 "2005-09-11T06:53:13Z")
> [@SaintCad](#):
>
> Start comparing Padilla to Benedict Arnold and see his support taper off.
I’m sorry, but I fail to see how Arnold compares favorably. Apart from being Anglo-Saxon.
---
### Author:  [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)
#### Post date: [September 11, 2005, 3:00pm UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/19 "2005-09-11T15:00:54Z")
> [@BrainGlutton](#):
>
> Which part of that was supposed to make us feel better?
I’m sure it makes _you_ feel a lot worse.
> [@Diogenes the Cynic](#):
>
> So what?
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.
---
### Author:  [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)
#### Post date: [September 11, 2005, 3:03pm UTC](https://boards.straightdope.com/t/padilla-decision-u-s-citizen-can-be-held-without-charge-as-enemy-combatant/321020/20 "2005-09-11T15:03:23Z")
> [@BrainGlutton](#):
>
> I’m sorry, but I fail to see how Arnold compares favorably. Apart from being Anglo-Saxon.
How can Arnold be Anglo-Saxon? He’s Austrian by birth.
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