Padilla and the Death of the Republic

While looking for the opinion of the Fourth Circuit in Padilla v. Hanft, I noticed that the Court’s homepage had a link to celebrate Constitution Day. I think a better celebration of the Constitution would have been not rendering it useless, as the three-judge panel did in its unanimous decision in the Padilla case.

The opinion, written by Judge J. Michael Luttig, begins with a matter-of-fact description of Padilla: “Appellee Jose Padilla, a United States citizen, associated with forces hostile to the United States in Afghanistan and took up arms against United States forces in that country in our war against al Qaeda.” Usually when a court renders a decision, and they use the personal possessive pronoun “our” they mean “the court’s.” I doubt, however, that Judge Luttig, in writing the opinion, meant that the Fourth Circuit Court was conducting the war in Afghanistan. More likely his use of the term is indicative of the lack of judicial independence that ostensibly protects all parties in cases brought before the court. Luttig referring to the attack on Afghanistan as “our war” certainly gives the impression of bias which, as Chief Justice nominee John Roberts has said repeatedly during his confirmation hearings, has no place in “our” judicial system.

The opening paragraph of the opinion details Padilla’s activities in the months before his arrest and detention in 2002. After fighting on the battlefield in Afghanistan, he “escaped” to Pakistan where he was “recruited, trained, funded, and equipped by al Qaeda” to commit terrorist attacks once back in the United States. Padilla was arrested upon his return to the US at O’Hare International Airport before he could carry out his mission of detonating a radiological weapon, a so-called “dirty bomb.” It appears that Luttig accepts this information at face value, and indeed, for the purposes of this motion, Padilla’s attorneys stipulated these facts. Unfortunately, Luttig wastes his time recounting this information for it is utterly irrelevant. In Section II of the Court’s opinion, we are told that the authority given to the President under the Authorization for the Use of Military Force Joint Resolution (AUMF), passed by Congress three days after the September 11 attacks, is sufficient to allow indefinite detention: “[T]he President is unquestionably authorized by the AUMF” to detain indefinitely anyone he declares an enemy combatant. Luttig’s recitation of Padilla’s activities is pointless, for the court provides no standards for what makes one an enemy combatant. The memorandum designating Padilla an enemy combatant is reprinted in its entirety in the decision. In it, President Bush states that he has determined that Padilla “is, and at the time he entered the United States in May 2002 was, an enemy combatant,” setting this declaration out as a preamble to the litany of Padilla’s suspected activities. Had Padilla only done some of what he was accused of in the President’s finding, would that have been sufficient for his indefinite detention? Was the President required to cite any allegations? What makes Padilla an enemy combatant, then, are not any of his activities in Afghanistan or Pakistan; that is incidental. The only thing that makes Padilla an enemy combatant is the fact that the President signed his name to a piece of paper that said Padilla was an enemy combatant. A fair reading of the opinion can lead to only one conclusion: an enemy combatant is anyone the President so designates.

Luttig feigns moderation in his third footnote, arguing that the President’s “power to detain that is authorized under the AUMF is not a power to detain indefinitely. Detention is limited to the duration of the hostilities as to which detention is authorized. . . . Because the United States remains engaged in the conflict with al Qaeda in Afghanistan, Padilla’s detention has not exceeded in duration that authorized by law.” However, since the AUMF gives the President the power to use “all necessary and appropriate force” against those “he determines” to have been responsible for the 9/11 attacks, “in order to prevent future acts of international terrorism,” the President has the authority to detain Padilla until the AUMF is repealed or superceded by a new Congressional resolution (which would require a two-thirds majority vote in both Houses to override a near-certain Presidential veto). In short, the President has de facto, if not de jure power to hold anyone indefinitely.

To support Congress’s grant of power to the President, Luttig cites two historical cases, both specious. The first concerns a Nazi saboteur detained and executed during WWII. However, there are two major differences between WWII and the Afghanistan War that Luttig does not mention. First, Germany, a recognized nation-state, declared war on the US, precipitating the declaration of war on Germany. In contrast, the 9/11 attacks were not from any one or cohesive group of nation-states, but from a decentralized organization operating in several countries, some of which were close allies of the United States. Such a distinction is important when comparing examples. This leads to the next difference, that WWII was a declared war where Congress exercised its sole constitutional authority to do so. Luttig reminds us that the Supreme Court held, in the case of the Nazi saboteur, that the President’s power to detain “in time of war” is “not to be set aside . . . without a clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted.” We are not, however, “in a time of war,” for only Congress has the authority to declare war. (In fact, December 11, 1941, was the last time Congress exercised this power.) In the “war” on Afghanistan, like every war since the end of WWII, Congress was reluctant to declare war, shirking its authority to do so. Instead, with the war in Afghanistan, and also with the authorization to use force in Iraq, Congress shamefully”and illegally”surrendered its decision to declare war to the President. As one commentator at the time said, John Kerry, John Edwards, and the rest of their colleagues in Congress had no more right to give the President the authority to go to war than they had to give that authority to the Supreme Court or any other entity. Thus, the authority given to President Roosevelt in WWII simply cannot be compared to the grant of authority given to President Bush in either context or constitutionality.

The other example of wartime detention cited in the opinion was from the Civil War. A Confederate sympathizer was detained by the Union, having been accused of associating with an anti-Union secret society. In Luttig’s opinion, since the Supreme Court ruled that Lambden P. Milligan was “unaffiliated with the Confederate army [he] could not be tried by a military tribunal,” thereby making a distinction with Padilla, who had affiliated with a hostile military force. But if we apply the Fourth Circuit panel’s reasoning retroactively, President Lincoln had simply to designate Milligan an “enemy combatant” pursuant to an act of Congress. Like Bush under the AUMC, he would have had the first and final word on who is an enemy combatant.

In the Padilla case, all Luttig considers is whether Congress granted the President the power to detain people indefinitely. Given the Resolution’s broad language, it most likely does give the President that power. But, like the war making power, Congress has no business delegating such authority to the President or anyone else. It simply cannot be maintained that the Constitution would allow the President to suspend its protections for anyone he deemed an “enemy combatant.” The saying goes that “rules are meant to be broken.” Nonsense; rules are meant to be followed, and Constitutions are meant to be enforced. Otherwise, they are nothing but whitewash for tyranny, as, for instance, the Soviet Constitution under Stalin certainly was. Luttig would have us believe that the framers of the Constitution wasted those hot summer months in Philadelphia back in 1787 hammering out a social charter that could be abrogated on the whim of one man. The entire purpose of the Constitution was to prevent such abusive power.

Many argue that the President would not use this power to detain capriciously anyone he wished. This is irrelevant on two counts. First, under the Fourth Circuit panel ruling, President Bush cannot, by legal definition, detain anyone capriciously, for he is “unquestionably authorized” to detain anyone he designates an “enemy combatant.” Second, that the President is unlikely to use this sweeping power to incarcerate people at random has nothing to do with whether or not he should have that right. The system of law is predicated on its equal enforcement, not on the mood swings of a neo-monarch.

Another contention is that the President’s power to detain is limited by the duration of the hostilities, making even an unjust detention a temporary condition. In a press release the ACLU stated “it is . . . important to understand [the Fourth Circuit opinion’s] limitations. It does not authorize the government to designate and detain as an enemy combatant’ anyone who it claims is associated with Al Qaeda or other terrorist groups.” As argued above, though, since the President sees the Iraq war as part of his mandate under the AUMF “to prevent future acts of international terrorism,” the decision in the Padilla case would allow indefinite detentions of anyone the President designates as an “enemy combatant” in the so-called “War on Terror.” It follows then that anything the President declares to be part of his efforts “to prevent future acts of international terrorism” could be used as an umbrella authority to detain anyone that the President feels, in his sole opinion, is worthy of being declared an “enemy combatant.” Furthermore, as the grant of authority under the AUMF seems to be open-ended, these detentions are, in practicality, indefinite. In other words, the ACLU is wrong. The decision in the Padilla case means that the President has the authority to detain anyone he wishes for as long as he wishes.

Winston Churchill wrote to Britain’s Home Secretary Herbert Morrison on November 21, 1943:

“The power of the executive to cast a man in prison without formulating any charge known to the law and particularly to deny him the judgment of his peers is in the highest degree odious and is the foundation of all totalitarian government, whether Nazi or Communist.”

And this, as many writers have pointed out, was at a time when Britain’s security and future were anything but certain. Churchill likely would have agreed that the fate of Jose Padilla is of more than passing interest. I believe it to be the most important issue to face the Constitution since it went into effect on June 21, 1788; this statement is made not out of any personal sympathy for Jose Padilla or his alleged actions. But I also do not care one whit what his “alleged actions” were. Nothing he may have done or been planning to do could possibly be a greater threat to the security of this society and the rule of law than the direct dissolution of that rule of law. If the Supreme Court sustains the indefinite detention of American citizens, it will mark nothing less than the complete invalidation of the Constitution, an end to the rule of law, and the paving of the way for complete dictatorship.

I hope you enjoyed this recent Constitution Day. It may very well be the last with even the semblance of meaning.

TOM GORMAN is a writer and activist living in Glendale, California. He welcomes comments at








We published an article entitled “A Saudiless Arabia” by Wayne Madsen dated October 22, 2002 (the “Article”), on the website of the Institute for the Advancement of Journalistic Clarity, CounterPunch, (the “Website”).

Although it was not our intention, counsel for Mohammed Hussein Al Amoudi has advised us the Article suggests, or could be read as suggesting, that Mr Al Amoudi has funded, supported, or is in some way associated with, the terrorist activities of Osama bin Laden and the Al Qaeda terrorist network.

We do not have any evidence connecting Mr Al Amoudi with terrorism.

As a result of an exchange of communications with Mr Al Amoudi’s lawyers, we have removed the Article from the Website.

We are pleased to clarify the position.

August 17, 2005