Editore"s Note
Tilting at Windmills

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December 18, 2003
By: Kevin Drum

A TRIAL FOR PADILLA?....An appeals court has ruled that "dirty bomber" Jose Padilla can't be held indefinitely without a trial. Basically, the opinion says that the president has no power to detain American citizens without congressional approval, especially given the fact that Congress specifically banned such detentions in 1971:

....the Non-Detention Act provides: No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress. 18 U.S.C. 4001(a). The District Court held that this language encompasses all detentions of United States citizens.

....Both the sponsor of the Act and its primary opponent repeatedly confirmed that the Act applies to detentions by the President during war and other times of national crisis. The legislative history is replete with references to the detentions of American citizens of Japanese descent during World War II, detentions that were authorized both by congressional acts and by orders issued pursuant to the Presidents war power. This context convinces us that military detentions were intended to be covered. Finally, the legislative history indicates that Congress understood that exceptions to the Non-Detention Act must specifically authorize detentions.

In other words, the constitution does not authorize military detentions and the Non-Detention Act specifically prohibits them. Therefore, if the president wants authority for military detentions of American citizens caught on U.S. soil, he has to ask Congress for an exemption from the Non-Detention Act, and there's nothing to stop him from doing that. Strict constructionists should heartily approve.

Needless to say, this decision will almost certainly be appealed instead of going to Congress to get the law changed. Stay tuned.

POSTSCRIPT: In case you're curious, the court also took note of national security concerns:

The offenses Padilla is alleged to have committed are heinous crimes severely punishable under the criminal laws. Further, under those laws the Executive has the power to protect national security and the classified information upon which it depends. See, e.g., 18 U.S.C. app. 3. And if the President believes this authority to be insufficient, he can ask Congresswhich has shown its responsivenessto authorize additional powers.

The Justice Department does indeed have many tools at its disposal to prevent exposure of classified information in court, and can certainly ask for more if it thinks they need them.

Kevin Drum 10:29 AM Permalink | Trackbacks

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