If you read the opinion, you'll see that Padilla was originally arrested on a court-ordered warrant, which was later vacated by that court after he was handed over to the military. The point is that civilian courts and agencies were perfectly capable of keeping Padilla out of circulation (since they're the ones who took him out of circulation), thus the military detention wasn't "necessary" under the president's authority. If no authority, then unconstitutional.

If Congress wants to suspend habeas corpus for Americans who are members of al-Qaeda or affiliated groups as a preventive measure, by all means. But that is the Congress' discretion, not the president's.

James,

As for "no declaration of war." Congress passed the "Authorization for the Use of Military Force" in the wake of the September 11 attacks, which is the same thing. Thus, the idea that this is all solely about "criminal" matters is wrong. It is also a military matter, but in a manner bound by the Constitution.

It has been established (except in a court of law) that Padilla was a member of some part of al Qaida. It has been established that the enemy we fight in this war doesn't use traditional military uniforms, they just go about their business of killing whomever they please in as large numbers as they can, uniforms be damned.

Now, I realize Mr. Padilla wasn't wearing a uniform, and I know he didn't have his little dirty bomb on his person when arrested. But I can't for the life of me figure out what the problem is keeping this sandbat out of circulation in the Western Hemisphere. After people are dead (up to tens of thousands in his case) it will be too late to say he shouldn't be doing that. By the way I'm reading these things, in the nanosecond between the time he pulls the trigger on his dirty bomb and the time everything within miles is nuclear waste, the government is supposed to step in and arrest him and prevent it from happening?

What's wrong with this picture? He wasn't planning a convenience store holdup at 3 am!

Lincoln suspended habeas corpus in certain areas in Maryland (namely, marching routes into Washington, DC). He was uncomfortable with this (limited) act, however, and asked Congress to pass legislation giving him express authority to do so.

And then--like you say--went on to win the Civil War.

And you are right, the Constitution is not a suicide pact, which is why it doesn't give the president the authority to either ignore law or make it up.

Also, it is not a suicide pact in the sense that it expressly gives Congress the authority to define violations of the "laws of war" and suspend habeas corpus in times of war and insurrection. And Congress has had more than sufficient time to pass such legislation since 2001. Thus, appeals to "inherent" presidential authority and "imminent threats" contravene the Constitution.

That both the president and the Congress have been negligent in dealing with this problem cannot be blamed on the Constitution.

If Bush wanted indefinite detention authority, he would be better off getting Congress to pass a bill giving him authority to do so in specific cases. Congress would have to rest on its authority to suspend habeas corpuse (Article I.9) and its Article I.8 authority to determine the laws of war.

The White House has relied on inherent authority arguments (from the Bybee Memo, for instance). This is not only constitutionally inexcusable, their unwillingness to get authority from Congress has been a massive tactical failure in the War on Terrorism.

After Padilla's [aka Al Muhajir] arrest, Ashcroft said: "Let me be clear: We know from multiple independent and corroborating sources that Abdullah Al Muhajir was closely associated with al Qaeda and that as an al Qaeda operative he was involved in planning future terrorist attacks on innocent American civilians in the United States."

If this is really the case, then he will certainly be punished for breaking the law. The question is why the government hasn't gotten around to putting this guy on trial.

Of course, in the case of Hamdi, who Ashcroft and Rummy consistently framed as a threat, he was let off scot-free.

And Michelle Malkin has a lengthy and interesting post that doesn't.

Part of the problem with Michelle's argument regarding the Joint Resolution of Congr...

Judge Floyd ruled the only way that any reasoned thinker should. It is always difficult to balance dealing with a potential threat to the public against an intangible, such as the public's civil rights, but once the scale starts tipping toward the threat, it is difficult, if not impossible to get back the civil rights. Tough decision, but not a tough choice.