Not So Fast

22 December 2003


Court Gives Padilla to Civilian Authorities

It was a victory for common sense, but it required a 2-1 vote by the 2nd US Court of Appeals to turn US citizen Jose Padilla over to civilian justice. The court decided that, in time of war, the president does not have the power to hold a citizen detained on US soil as an enemy combatant. But before the civil libertarians declare victory, they need to read the fine print.

Mr. Padilla is accused of being an Al-Qaeda operative and of being involved in a plot to detonate a radiological, or "dirty," bomb in the US. He was busted at Chicago's O'Hare airport a year and a half ago when he arrived from Pakistan. If the allegations are true, he should be charged with treason -- defined in Article III, Section 3 of the US Constitution -- "Treason against the United States, shall consist only in levying War against them [in those days the US was a plural noun], or in adhering to their Enemies, giving them Aid and Comfort." Plotting an attack to follow up the September 11, 2001 atrocities counts as levying war and adhering to enemies.

However, that does not require Mr. Padilla to be held by the military. Dressed in civilian clothes, arriving in the US by civilian airliner, he is not, under international law, a combatant, nor was he caught in a combat zone where military authority may prevail. This was always a matter for the civil authorities.

Be that as it may, the court held, "Where, as here, the President's power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of Americans on American soil." A most disturbing sentence, one that harkens back to the immoral interment of American citizens of Japanese descent in World War II.

The court has not decided that American citizens can't be held by the military when taken into custody in the US, but rather, it has decided that Congress must be complicit in the erosion of civil liberties that would entail. This case may well go to the Supreme Court, and it should, if only to clarify that not even Congress has the right to put American citizens in jail without access to counsel for indefinite periods of time. It is a good thing the founding fathers defined treason so narrowly -- the court's caveat here can only be called un-American, not treasonous.

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