THE PADILLA JUDGES GOT IT WRONG
Interesting take from Bruce Fein on the military detention of Jose Padilla. Here a few exerpts:
According to an unsealed declaration submitted by Michael H. Mobbs, Padilla had been convicted of murder and a handgun charge before moving to Egypt in 1998. He traveled in the Middle East and Southwest Asia between 1999 and 2000 in comradeship with known members and leaders of al Qaeda. During an Afghanistan sojourn, Padilla joined a plan to construct and detonate a radioactive bomb within the United States.---
In sum, Padilla might be likened to the Nazi saboteurs during World War II, including an American citizen, who were apprehended in the United States, tried by a military commission as "unlawful combatants," and executed. The Supreme Court in ex parte Quirin (1942) sustained the constitutionality of President Franklin D. Roosevelt's interdiction and execution of the saboteurs.
The court of appeals majority fatuously urged, in contrast to Quirin, that Padilla was taken into custody "outside a zone of combat." As any sapient creature knows, the September 11 villainies in the United States are al Qaeda's signature; and, it regularly incites jihads against United States civilians and soldiers anywhere on the planet. Sanctuaries from its international terrorism are chimerical. That explains the newly created Department of Homeland Security and the United States terrorist threat color codes.---
Judges Pooling and Parker enlisted as their decisional keystone a federal statute denying the president power to detain citizens "except pursuant to an Act of Congress." In the aftermath of September 11, a Joint Resolution authorized the president to unleash "all necessary and appropriate force" against any nation, organization, or persons implicated in the terrorist attacks to thwart "any future acts of international terrorism against the United States."
Padilla was acting in collaboration with al Qaeda; and, his detention and interrogation would help derail future al Qaeda terrorism. But reminiscent of a surprise O Henry ending, the two judges whimsically concluded the Joint Resolution intended to sanction killings of enemy combatants, but not their detentions as prisoners of war for counterterrorism intelligence or otherwise.
The Padilla ruling demonstrates the dangerousness to national security of judicial ignorance in action. Its reversal by the Supreme Court is foreordained.
I agree with everything but that last sentence. Since a couple of justices on the SCOTUS have openly replaced the Constitution and US legal precedent with their own view of "international law," nothing should be taken as foreordained. The Supreme Court has become a mercurial, unpredictable body capable of making up laws ex nihilo and ignoring the plain text of laws handed down straight from the founding fathers.