On Sept. 12, 2001, no American could have doubted the nation was at war. The United States had not declared war on anyone, but an enemy known as Al Qaeda had unmistakably declared war on the United States. After 26 months without another major terrorist attack on American soil, though, it’s easy to get the idea that the war is over or isn’t really a war. That dangerous mistake lies at the heart of a federal appeals court decision ordering the release of a suspected confederate of Al Qaeda.
Jose Padilla, a U.S. citizen, was arrested in May 2002 after arriving from Pakistan at O’Hare International Airport. The government says he met with Al Qaeda operatives and returned to the U.S. after proposing to steal radioactive material to make a “dirty bomb.” He was eventually declared an enemy combatant and has been held in a brig ever since.
But Thursday, the U.S. Court of Appeals for the 2nd Circuit said the president lacks the power to detain Padilla as an enemy combatant–and must free him from military custody within 30 days. If the government sees him as a threat, says the court, it can file criminal charges.
The decision is hard to fathom. In time of war, presidents have broad powers to attack the enemy and protect Americans, from sending hundreds of thousands of American troops in harm’s way to launching nuclear missiles. The warmaking power entrusted to the president in the Constitution obviously includes the right to capture and hold anyone fighting on the other side–even if he’s an American seized on American soil. During World War II, the Supreme Court upheld the military trial of several German saboteurs caught in the United States, including one who claimed American citizenship.
The appeals court, however, dismissed the notion that the Constitution grants the president this power outside what the court called “a zone of combat”–as if the 50 states were off-limits to attack. It said that in addition, he disregarded a law barring detentions of citizens.
But that law says detentions may indeed be carried out “pursuant to an act of Congress”–such as the one adopted Sept. 18, 2001, authorizing the president to “use all necessary and appropriate force” against those who carried out the Sept. 11 attacks. What part of “all” does the appeals court not understand? Even if the Constitution didn’t grant the president wide latitude in waging war, which it does, that resolution left no doubt about his power to go after Al Qaeda wherever it might be found.
It’s true that the administration went too far in claiming unfettered power over an American captured on American soil. For that reason, a federal district court was right to insist that Padilla be allowed to challenge the evidence that he is, in fact, an enemy combatant, and have access to a lawyer to do so. But it refused to buy the crazy idea that someone accused of plotting to slaughter Americans on behalf of a foreign power should be treated like a shoplifter.
If the administration was guilty of overreaching, the appeals court has more than matched its error. The criminal justice system is no place for enemy combatants. The Supreme Court should waste no time affirming that fact of life.
