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March 03, 2005

Padilla and Presidential Power

It may be late, but I don’t want to pass up the ruling Feb. 28 in the Padilla case. At issue is whether President Bush, under the “authorization to use military force” resolution of September 18, 2001, can order an American citizen on American soil seized and held as an “unlawful combatant.” If the president can seize Padilla, he can seize anyone, because he has had Padilla held in a Navy brig without trial since May 8, 2002. The judge said clearly and forcefully that the president can’t do that. The president executes the laws. No law of Congress authorizes detention without trial, and one law, the Non-Detention Act, specifically forbids it. “The detention of a United States citizen by the military is disallowed without explicit Congressional authorization,” the judge wrote. “This is a law enforcement matter, not a military matter.” This is not a wimp decision that says let the terrorists go. When Padilla was seized by the military, he was already in jail, under civilian arrest and being held as a material witness in a civilian grand jury investigation. The civilian grand jury issued a warrant for his arrest. Padilla was taken out of the civil justice system and put into a Navy brig. In arguing that it could do that, the Bush administration cited the case of the German saboteurs landed on the Atlantic coast during World War II. But they had been tried according to a law. More to the point, was the Steel Seizure case of 1952, in which President Truman seized privately owned steel mills during the Korean War in order to stop a strike. The court—and it was mostly a New Deal court, too—said he could not do it. And the reasoning the court used then applies to the case of Padilla today. Of course the Steel Seizure case was about property rights, and the Padilla case is about human rights. These are two aspects of the same thing, and if the President can take away one he can take away the other. Respond to Bruce.

Posted by Bruce Ramsey at March 3, 2005 07:00 PM

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