Judge J. Michael Luttig, who is said to be on the president’s “short list” to fill a second Supreme Court vacancy, believes the answer is yes. On Sept. 9, in Padilla v. Commander C.T. Hanft, Luttig and two other federal appellate court judges reversed the federal district court that had ordered the government either to charge suspected terrorist Jose Padilla with a crime, or release him.
Padilla, a Brooklyn‐born American, was arrested by federal agents at O’Hare International Airport in May 2002, and held on a material witness warrant. Two days before a hearing in federal court on the validity of that warrant, the president declared Padilla an “enemy combatant” plotting a “dirty bomb” attack in the United States, and ordered him transferred to a naval brig in South Carolina, hundreds of miles away from his lawyer. Padilla has been held there for over three years without charges or meaningful access to counsel.
There’s little in Padilla’s background to suggest he’s an innocent man wrongly accused–he’s a violent ex‐con with apparent ties to Al Qaeda. But “the innocent have nothing to fear” is cold comfort and poor constitutional argument. The very principle that imprisons the guilty can be used to seize the innocent.
The principle the Bush administration has advanced to justify Padilla’s detention is broad indeed. It amounts to the assertion that the executive branch can serve as judge, jury, and jailer in cases involving terrorist suspects. Of all the powers claimed by the president since September 11, that power is the one most to be feared–not least because, due to the nature of the war on terrorism, it’s a power unlikely ever to be relinquished.
The grounds for Judge Luttig’s decision are somewhat narrower, but no less dubious. Without ruling on the Bush administration’s staggering executive power claims, Judge Luttig held that the use‐of‐force resolution Congress passed prior to the war in Afghanistan was broad enough to authorize the seizure and prolonged detention of American citizens here in the United States. That resolution reads, in relevant part, “[T]he 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.” Judge Luttig’s assertion that quasi‐permanent imprisonment in a military brig constitutes “necessary and appropriate force” is an exercise in question‐begging. If Congress intended to give the president the power to declare an American citizen a constitutional “unperson” and hold him without charges or a trial, the least our courts could require is a clear statement from Congress to that effect.
Thus far, President Bush has wielded this vast power sparingly. But there’s no guarantee that he–or his successors–will continue to show restraint. In fact, in 2002, the administration considered broader use of domestic detention. As Newsweek reported in April 2004, Vice President Dick Cheney and Defense Secretary Donald Rumsfeld wanted to invoke the “enemy combatant” concept to hold six Americans from Lackawanna, New York in a military brig without access to the courts. “They are the enemy, and they’re right here in the country,” Cheney declared, according to an administration official. The administration also considered using the power against other Americans, including a group of suspected terrorists in Portland, Oregon. It was, surprisingly enough, Attorney General John Ashcroft who spoke up for civil liberties and the rule of law, convincing the administration to pursue the Lackawanna Six through ordinary constitutional processes.
Yet if the Supreme Court upholds the September 9th ruling in the Padilla case, ordinary constitutional processes could be suspended at the will of the president. No president should be trusted with a power that vast.