Padilla’s indefinite detention, without access to an attorney, has civil libertarians up in arms. That’s why the Cato Institute, joined by five ideologically diverse public policy organizations — the Center for National Security Studies, the Constitution Project, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute — filed a friend‐of‐the‐court brief in Padilla v. Rumsfeld, now pending before the U.S. Court of Appeals for the Second Circuit in New York.
Consider this specious logic, endorsed by the Bush administration: Under the Sixth Amendment, the right to counsel does not apply until charges are filed. The government has not charged Padilla. Ordinarily, U.S. citizens cannot be detained without charge. But the administration has avoided that technicality by designating Padilla as an “enemy combatant,” then proclaiming that the court may not second‐guess his designation.
Essentially, on orders of the executive branch, anyone could wind up imprisoned by the military with no way to assert his innocence. That frightening prospect was echoed by J. Harvie Wilkinson, the respected and steadfastly conservative chief judge of the Fourth Circuit. In a case involving another U.S. citizen, Yaser Hamdi, Wilkinson warned, “With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel.” Judge Wilkinson upheld Hamdi’s detention but pointedly noted that Hamdi’s battlefield capture was like “apples and oranges” compared to Padilla’s arrest in Chicago. “We aren’t placing our imprimatur upon a new day of executive detentions,” Wilkinson cautioned.
An unambiguous federal statute and the U.S. Constitution both prohibit the executive branch from doing to Padilla what it is now doing. More than three decades ago, Congress passed Title 18, section 4001(a) of the U.S. Code. It states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Today, we have not had from Congress any statute that authorizes Padilla’s detention.
Yes, Congress enacted the PATRIOT Act, which says that non‐citizens suspected of terrorism can be detained, but only for seven days. After that, they have to be released or charged, unless the attorney general certifies every six months that they present a security risk. Two months earlier, Congress had passed a resolution empowering the president to use all necessary force against the 9/11 terrorists. But that resolution surely did not give the administration unfettered discretion to detain citizens without charge. If it had, then the ensuing PATRIOT Act would have afforded more protection to aliens than to citizens. In the wake of the 9/11 attacks, that proposition is incredible.
Reasonably construed, Congress’ resolution on the use of military force triggered the president’s commander‐in‐chief authority. He could then order seizure of enemy soldiers and detention of persons found in a zone of active combat. But he could not order the imprisonment, without charge, of an unarmed non‐soldier far from active combat, especially a U.S. citizen on our own soil.
Nor is the administration justified in its reliance on Ex parte Quirin, the Supreme Court case involving eight Nazi saboteurs, one of whom was an American citizen. The executive branch acted in Quirin in accordance with congressional authorization. The eight Nazis were represented by counsel, charged, tried, and convicted. Here, by contrast, Padilla has been denied any chance to defend himself. He has seen no lawyer; he has not been charged, much less tried and convicted. And he has been imprisoned notwithstanding a 30‐year‐old statute that expressly forbids the unauthorized detention of U.S. citizens.
Padilla may deserve the treatment he is receiving — perhaps worse. That is not the point. When Americans are taken into custody, they have the right to retain an attorney. Congress must first set the rules. Then an impartial judge, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution. James Madison, in Federalist No. 47, put it succinctly: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”