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Why an appeals court opinion on Jose Padilla is not anti-government

By Edward Lazarus
FindLaw Columnist
Special to CNN.com


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(FindLaw) -- In a recent decision, the U.S. Court of Appeals for the 2nd Circuit held that the president may not unilaterally arrest a U.S. citizen on American soil and hold him indefinitely in military detention as an "enemy combatant." That is, he may not do so without Congress's prior authorization for such detention. (Full story)

This ruling has sharpened the battle lines between two groups of legal warriors. One is composed of civil libertarians who deplore the Bush administration's approach to the "War on Terror." They have hailed the 2nd Circuit's ruling as a stern rebuke to the administration. And they have seen the ruling as a triumph for a principle they hold dear: The belief that a war on terrorism that cannot be won without abridging the long recognized rights of the citizenry is a self-defeating, democracy-destroying enterprise.

The other is composed of those who champion Executive power to deal decisively with the new threats that terrorism poses to our domestic security. In their view, the 2nd Circuit's ruling is dangerously blind to the realities of a post-9/11 state of emergency -- which, for all of our safety, justifies circumventing our civilian system of criminal justice in favor of the military detention of suspected terrorists, even if they are U.S. citizens located within the United States.

But both sides, it seems to me, exaggerate the practical and legal significance of the 2nd Circuit's ruling and, in so doing, miss the true beauty of the opinion.

Far from being a definitive or radical statement of any kind, the ruling in fact reflects a profoundly restrained approach. The opinion does not prevent military detention of suspected citizen-terrorists. Instead, it merely requires a specific legislative mandate for such a deep intrusion into the liberties customarily afforded every American.

In other words, once emotional responses are set aside, the 2nd Circuit's opinion simply recognizes that, in a democracy, emergency measures that have potentially broad implications for the domestic freedom of citizens should be specifically considered and authorized by the people's representatives -- not the Executive acting alone.

The real surprise, it seems to me, is that such a limited ruling should be controversial at all. Shouldn't we all applaud the recognition by unelected judges of the importance of democratic ratification of serious domestic anti-terrorism measures?

The facts relating to Jose Padilla's 'enemy combatant' designation

The facts of Jose Padilla's case -- at least, those that have been made public in relation to his claimed "enemy combatant" status -- are simple enough.

Padilla is a New York native and an American citizen. On May 8, 2002, Padilla was arrested at Chicago's O'Hare Airport after returning from Pakistan.

On June 9, the President directed Secretary of Defense Rumsfeld to detain Padilla in military custody (and, thus, without access to standard constitutional protections) as an "enemy combatant."

As a basis for this enemy combatant designation, the president claimed that Padilla was closely associated with (though not a member of) al Qaeda; that he had been involved in preparing for terrorist attacks against the United States, including the detonation of a "dirty bomb"; that he had useful intelligence information; and that he generally posed a threat to the security of the nation. (It has also become public that as a minor, Padilla was convicted of murder.)

Should the president have sole power to detain Padilla?

There's no question that the Padillas of the world may wreak extraordinary damage. And it may well be that indefinite detention is the only way to protect society from suspected terrorists against whom there is evidence that is convincing, but still not strong enough for a "beyond a reasonable doubt" conviction. As a result, some favor giving the government power to detain indefinitely suspected terrorists without observing the niceties of the Bill of Rights.

The controversy before the 2nd Circuit, however, was not about whether that power should exist; it was about who should have the right, if it does exist, to exercise it. Should it be the president alone, in his role as commander-in-chief of the war on terrorism? Or should Congress's approval first be necessary?

There is a strong argument that this power should not rest solely in the president's hands. For one thing, as the Padilla case shows, the president may assert this power with respect to U.S. citizens arrested on U.S. soil.

(In addition, the power has also been asserted with respect to U.S. citizens abroad. In a separate case that the Supreme Court recently decided to review, U.S. citizen Yaser Hamdi, who was arrested in Afghanistan, is also being deemed an "enemy combatant.")

Moreover, as Padilla's case also shows, the president may assert the power without any limit as to the duration of the detention. And he may assert it regardless of the fact that the citizen in question is agreed by all not to be a member of a terrorist organization.

This is an exceptionally broad claim of unreviewable Executive authority. Accordingly, it raises the specter of abuse and mistake.

The administration also maintains that no court has the power to intervene in an "enemy combatant" designation -- even to review the sufficiency of the basic facts underlying the designation. Thus, if the power is asserted, abuses may be unearthed only after their victim has suffered for years -- perhaps decades -- in incommunicado detention.

The 2nd Circuit's decision followed relevant U.S. Supreme Court precedent

Some would justify vesting this sole power in the President based on the argument that this is, in effect, wartime, and accordingly, strong and unilateral Executive action is justified. But in considering its decision, the Second Circuit was not writing on a clean slate. And in the context of a traditional, declared, finite war -- the Korean War -- the Supreme Court rejected this very argument. Now, in the context of the indefinite, metaphorical "war on terrorism," the argument by necessity is far weaker.

More than 50 years ago, in wartime, President Truman took bold, unilateral Executive action. In order to head off an impending steelworkers strike and guarantee that steel supply for the Korean War go uninterrupted, Truman ordered the Secretary of Commerce to seize the nation's steel mills. Plainly, the war imported exigency to the matter: The troops needed weaponry.

Nevertheless, in its 1952 decision in Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court rejected Truman's claim of inherent Executive authority. And over the years, Justice Robert Jackson's concurring opinion in that decision has become the accepted framework for evaluating the scope of the President's powers as Commander-in-chief when it comes to domestic affairs.

That framework directs the reviewing court, when confronting an issue that involves both foreign and domestic affairs, to balance the competing claims of Congress and the Executive, and thus maintain the balance of power between the two branches. Of course, the Executive has supreme authority over external conflicts. But, as Jackson recognized, when the Executive attempts to extend that authority into the domestic sphere, it runs headlong into the several constitutional provisions that give Congress -- not the Executive -- special authority to deal with domestic national security.

Jackson's counsel as to what balance is proper boils down to three simple rules. First, when the president exercises his authority with the concurrence of Congress, his powers are at their apex. Second, when he exercises his authority in the face of opposing Congressional action, his powers are at their lowest ebb. Third, when Congress has been silent on the relevant issue, the scope of the president's authority occupies some middle ground.

The 2nd Circuit's decision was a straightforward application of Youngstown

In deciding the Padilla case, the 2nd Circuit merely applied the Youngstown framework. As the Court noted, in 1971, Congress had passed a law specifically providing that "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." (Emphasis added.)

Moreover, before enacting this law, Congress specifically considered -- and apparently approved of -- the possibility that the law would ban the detention of citizens even in wartime, and even as a tool to prevent domestic sabotage. (Of course, it is possible that the current Congress would feel differently. But if so, it ought to speak to the issue and amend the law.)

Under Jackson's framework, once again, when Congress already taking action, the President's power to take an opposing action are at their lowest ebb. Thus, it is not surprising that, applying Youngstown, the 2nd Circuit ruled that the President could not detain Padilla absent a congressional statute authorizing such an exercise of Executive authority.

In sum, the 2nd Circuit's ruling was certainly well grounded in Youngstown. But even leaving precedent aside, it must be viewed as an admirable exercise of judicial statesmanship in its own right.

The 2nd Circuit's three options -- and why the court chose the best of the three

The three-judge 2nd Circuit panel that decided Padilla's case had three basic options:

First, it could uphold the President's unprecedented claim of inherent authority to hold U.S. citizens incommunicado and indefinitely.

Second, it could reject that claim outright -- holding that the President could never, under any circumstances and regardless of Congressional authorization, hold a U.S. citizen incommunicado and indefinitely.

Third, it could ensure that, if such detentions were to occur, they would be authorized not just by the president, but by the more democratic and representative legislature as well.

Of course, the 2nd Circuit panel opted for the third choice -- and it should be applauded for that. The result of its decision has been not to end the national debate over such controversial detentions, but rather to prolong it. And certainly, the question of detention is important enough that it ought to provoke careful consideration and informed and lengthy debate. After all, in a sense it is a lose-lose proposition: Either security or liberty will have to be sacrificed.

Suppose that, as critics of the 2nd Circuit decision maintain, the state of our domestic security is truly so precarious that we need to give the president broad authority to detain citizens indefinitely and incommunicado -- without charging them with crimes, engaging in the usual processes of arrest and prosecution, and affording them access to attorneys and family visits.

If the situation is truly as dire as this, then surely Congress can be convinced to authorize such extraordinary action. And if the President cannot persuade Congress on this point, then perhaps the situation does not really require such measures.

Either way, the 2nd Circuit's decision is profoundly pro-democracy -- and that is, after all, the principle for which we are supposed to be fighting. It leaves the liberty v. security tradeoff to Congress, and thus to the citizenry -- the very people who will be most affected.

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Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."


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