Tuesday, March 01, 2005

That pesky judicial tyranny

The Washington Post reports today that the federal District Court in South Carolina has ruled that the federal government must either charge Jose Padilla with a crime or release him. This opinion comes as yet another blow to the President's broad assertion of war-time powers, especially as it pertains to detaining "enemy combatants" without representation, hearings or trials.

The actual opinion is a pretty good read. Section V.A compares the Padilla case to Hamdi v. Rumsfeld, Ex parte Quirin, and Ex parte Milligan, the three Supreme Court cases that deal with executive detentions in war-time. It does an excellent job showing that Hamdi can be differentiated on the bases of the place of detention (foreign battlefield vs. American soil); and that Quirin and Milligan both provide that the military may not detain citizens without direct Congressional authorization. For those interested in learning more about executive detentions and the President's war powers, this is a good starting point, I think.

The part I found really interesting, however, was Section V.B , which discusses something called the Non-Detention Act and how it applies to the Authorization for Use of Military Force (AUMF) passed by Congress on September 18, 2001. The Non-Detention Act, was passed by Congress in 1971 in (belated?) response to the Japanese-American detentions of World War II. It provides:
No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

The idea behind this act was to ensure that any plans for mass detentions could not be made unilaterally by the President and that they were given some degree of democratic vetting by the Congress. Of course, in this new era in which Republicans use their control of the House Rules Committee to bar Democrats participation in law-making and limit debate, one may wonder what protection this will provide. Nonetheless, even if Congress merely acts as a rubberstamp, the act ensures that the President cannot act alone and in silence.

Anyway, in the Padilla case, the President has claimed that the AUMF from September 2001 gives him the authority to detain people. The AUMF provides in 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The first thing I think of while reading this bit of text is a hilarious and insightful post from John and Belle Have a Blog. Congress passed an authorization so broad so as to arguably give the President the power to do whatever he wants...and a pony! This is certainly the intepretation the Justice Department has asserted. Nonetheless, even in light of that interpretation, the AUMF does not authorize detentions.

The President/Justice Dept. argue that the "all necessary and appropriate force" clause from the AUMF permit the detention of Padilla. The court summarily rejects this argument and, I think, it is the most important point in this opinion. The facts show that Padilla was arrested May 8, 2002, under the power of a material witness warrant issued by the Southern District of New York. In other words, Padilla was incarcerated under the jurisdiction of a civilian court. He remained in jail in New York until June 9, 2002, when the President declared him an unlawful combatant and transferred him to a brig in South Carolina. The President asserted that this was "necessary and appropriate". Was it? The court points out that the guy was in jail and posed no threat to anybody. In other words, necessity did not demand his removal to military jurisdiction and the President lacked the authorization of the AUMF to detain Padilla.

This case, like the torture memos and the Hamdi case, highlights this President's disturbing predilection to assert a virtually boundless executive power. Not content to let the civil legal process, with all of its procedural protections, work the President actually transferred Padilla to a jurisdiction where he clearly believed the normal constitutional protections did not apply. Thus, for going on 3 years, Padilla has sat in a detention cell without lawyers, without hearings, and without any charges to answer to. This is pure and simple, wrong. No one is saying that Padilla is innocent or should be set free. Rather, because we have a Constitution that places great value on individual autonomy and liberty, because we fought a revolution to free ourselves from authoritarian rule, because this is America, Padilla should be given the same protections and opportunities to defend himself as any other American accused of a crime. If he really is as bad and the evidence against him is as strong as John Ashcroft once suggested, then put the man on trial and ship him off to jail when a jury finds him guilty. Democracy cannot stand for long if the President insists on creating an American gulag.