The Bush administration has achieved a lot in the overseas part of the war on terror. But at home, on the legal front, it has suffered one setback after another.
On March 1, a federal district court in South Carolina ordered the release of Jose Padilla, who has been held without charges since his arrest three years ago on suspicion of plotting to set off a radioactive “dirty bomb.” The Justice Department said it will appeal, but its chances of success are low.
The Supreme Court has already ruled that the administration greatly overstepped its authority in another enemy combatant case–that of Yaser Esam Hamdi. And the government’s handling of Padilla was always much harder to justify than its treatment of Hamdi.
Both are U.S. citizens held as enemy combatants and denied the chance to challenge their detention. Both raised the worrisome issue of whether any American may be imprisoned without getting to make the case for his innocence before an impartial body. Unlike Padilla, who was arrested after getting off a plane at O’Hare International Airport, Hamdi was captured on a battlefield in Afghanistan, where he was carrying an AK-47.
Yet the Supreme Court ruled last summer that even an American citizen picked up in a war zone and confined in the United States may not be held indefinitely without charges. He must, instead, “receive fair notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.” If Hamdi couldn’t be held, the same appears to be true in spades for Padilla, who was unarmed, wearing civilian clothing and on U.S. soil when he was detained.
The executive branch enjoys wide latitude when it comes to waging war, but the administration managed to overstep those generous boundaries. It argued that a 1942 Supreme Court decision recognized its authority to detain Americans who have enlisted on the side of the enemy. The district court, though, said there was one critical difference: During World War II, Congress explicitly approved legislation denying such combatants access to the civilian courts. Not this time.
In the interim, moreover, Congress enacted a statute forbidding any detention of an American citizen “except pursuant to an act of Congress.” The administration argued that the joint congressional resolution passed on Sept. 12, 2001, authorizing the president to use “all necessary and appropriate force” against the enemy, provided all the power it needed. But that measure was too vague to override a clear prohibition on holding people without trial.
It’s clear now that the administration would have been better off had it enlisted Congress as a partner in decisions about how to handle the challenges of the war on terror. It should also have given more deference to the traditional role of the courts, instead of challenging their right to weigh in on Padilla and Hamdi. Had it done so, it might find itself with more freedom to wage this war rather than less.
