Eugene Volokh belives the 2nd Circuit got this one wrong and that SCOTUS will overturn. Volokh believes the president was given authority to detain any suspected al Qaeda members, whether citizens or not, whether arrested overseas or not, in the post-September 11 Joint Resolution:
The Resolution provided for the use of military force against al Qaeda. Military force has always been understood to include the power of military detention. Al Qaeda was an organization that was known to have members from many countries, and it was quite foreseeable that it would have some American citizens as members, too. (Even the Axis countries during World War II had some American citizens as soldiers.) There was no need, I think, to say “all necessary and appropriate force, including military detention, both of non-U.S. citizens and U.S. citizens.
Interesting. This strikes me as a reasonable interpretation of the statute, but one would think the 4th and 6th Amendments would trump statute. Presumably, there are judicial precedents to the contrary; but courts are often wrong.
Glenn Reynolds asks an interesting question:
If Jose Padilla were still known as Abdullah al-Muhajir, the name he was using when he was arrested, would the decision have come out the same way?
And if it had, would it be playing the same way in the press?
And who decided which name to use in the media coverage, anyway?
Obviously, the name or religious status of the accused shouldn’t matter in how courts rule, but it’s conceivable that it might. The press handling of the issue is another matter. There does seem to be a tendency to downplay the Islamic connection of some of these characters–the DC snipers being another prominent example.