MSNBC Breaking News:

President Bush does not have power to detain an American citizen seized on U.S. soil as an enemy combatant, a federal appeals court ruled Thursday in a decision that could force a man held in a dirty bomb plot to be tried in civilian courts.

In a 2-to-1 ruling, a three-judge panel of the 2nd U.S. Circuit Court of Appeals said the detention of Jose Padilla was not authorized by Congress and that Bush could not designate Padilla as an enemy combatant without the authorization.

“As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation,” the court said.

“But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress,” it added.

Padilla is accused of plotting to detonate a “dirty bomb,” which uses conventional explosives to disperse radioactive materials. The former Chicago gang member was arrested in May 2002 and within days was moved to a naval brig in Charleston, S.C.

This strikes me as a correct ruling. Indeed, I’d go further and argue that Congress doesn’t/shouldn’t have the authority to suspend the due process rights of U.S. citizens. I know there are precedents to the contrary with respect to both congressional and presidential authority to do this sort of thing during wartime, going back at least to the Civil War, but have never agreed with them.

I understand the need to maintain secrecy in national security matters and that some of the evidenciary rules that apply to normal criminal trials are unworkable when sensitive intelligence collection methods are involved. I don’t mind necessary waivers being granted in such cases, as long as the rules are laid out in advance and some judicial oversight is maintained. The fundamental rights of American citizens being charged with criminal matters should never be waived, but reasonable protections of classified sources and methods could be put in place without significant harm.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. RH says:

    Regarding your analysis of the Padilla decision, if the facts are not in dispute, given the catastrophic risk posed by Padilla’s WMD activity, don’t you think upholding the President’s power in this situation and knocking-it down in other cases that obviously involve political motivation is a reasonable approach, again, given the very real risk posed? I realize it’s a slippery slope either way, but here we already have a case of someone plotting major terrorist activity, and no cases (at least that I’m aware of) where the President has held anyone under this power for political purposes.

  2. James Joyner says:

    I view the Constitution as an absolute document. Rights are either inalienable or they aren’t.

  3. RH says:

    Well said. But the Constitution is not a suicide pact either.

  4. James Joyner says:

    Certainly not. But trying Padilla in a civilian court using the normal legal procedures would, presumably, lead to him being imprisoned. We’re in what amounts to a permanent state of war now. We can’t give presidents unilateral authority to suspend the Constitution indefinitely.

  5. RH says:

    Civilian imprisonment for someone, who despite the technicalities of the law, is essentially an enemy combatant, is not much of a consolation. In a civilian prison, Padilla can and most certainly will re-establish contact with those who directed him to build and detonate a dirty bomb. He can use his attorneys to funnel information to other operatives. Worst of all, important information Padilla gained in receiving dirty bomb training from Al Qaeda in Pakistan (and who knows where else and what other kind of training), will be exposed and will undermine the military’s efforts to identify and destroy terrorists plotting attacks against the United States.

    Regarding separation and scope of powers, I certainly do not suggest that we give presidents unilateral authority to suspend the Constitution indefinitely, I’m simply asking for a case-by-case analysis with deference to glaring national security concerns, such as a person who’s goal was (and probably still is) to detonate WMD in a major U.S. city, and who took substantial and material steps in collusion with others (mostly non-U.S.), toward achieving that goal.

    Instead of relying on judicial deference, perhaps Congress will move to authorize the President to impose military power upon US citizens domestically for the likes of Padilla. I glean from skimming the opinion that the court found the exercise of such power permissible in Quirin because Congress had authorized it.

  6. David Mercer says:

    Sorry there RH, you just stick him in solitary. He does NOT need to be in a military prison. The US citizen(s) captured under arms in Afghan, yeah, they’re combatants. The foreign citizens apprehended in the US, well, do what you will.

    But a US citizen arrested on American soil, with things only at the level of an (advanced) conspiracy, no no and no, that is when the Constitution’s protections MOST apply. Sounds like his offense is a literal fullfillment of the definition of Treason already outlined.

    Otherwise you just gave whoever holds the White House the unlimited power to detain all Enemies of the State, as we are now in a semi-permanent war-like condition. Puhleeze, Ascroft and Co. are claiming to be able to do this with only “secret testimony”.

    Lock Padilla in solitary for life, execute him, whatever after a trial. But Military Despotism in the name of the War on Terror? No thanks.

  7. M. Simon says:

    Just wait until the Senator from the Utah booby Hatch has his way.

    Drug crimes will become terror crimes. With little or no recourse to law.

    These idiots are bringing fascism to America in the name of freeing thte rest of the world. They are working hard to give the war on fascism a bad name.