4th Circuit Court of Appeals Says President Can do Whatever the Hell He Wants in a Time of War

The 4th Circuit Court of Appeals has given the President unchecked authority to arrest anyone he feels like. In Hanft v. Padilla the Circuit Court ruled that the President can detain "suspected terrorists" (whatever that is) as long as the state of war with Al-Qaeda exists, the Administration has stated many times (correctly) that it could pretty much last forever. So, the lesson here: don't piss off your government, because you have no rights anymore. If Bush doesn't like you he can call you an "enemy combatant" and give you a life sentence just by saying "you're a terrorist." King George now rules the United States if the 4th Circuit ruling stands, you have no rights, the only voice that matters is the President's say so, sounds to me like the autocratic power of say Hitler, or Stalin, of Pinochet, or Rosas, or Mao, or Santa Ana. An interesting name arises in this discussion. John Luttig, who wrote the opinion, is among the few individuals rumored to be the future nominee to replace retiring Justice Sandra Day O’Connor. Luttig's decision seems based nearly in its entirety on a gross misreading of Hamdi v. Rumsfeld. Luttig argues:

because, like Hamdi, Padilla is an enemy combatant, and because
his detention is no less necessary than was Hamdi’s in order to
prevent his return to the battlefield, the President is
authorized by the AUMF to detain Padilla as a fundamental
incident to the conduct of war.

But while Luttig proceeds with such bizarre arguments that the Court upheld the right of the President to detain American citizens as "enemy combatants." A reading of the decision in Hamdi tells us that they quite clearly ruled that Hamdi must be allowed basic due process rights in accordance with the 5th and 6th Amendments, but Luttig clearly seems to think that they ruled the opposite.

We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.

Thus in accordance with the Hamdi decision the 4th Circuit should have ruled that Mr. Padilla cannot be detained without due process and the President must allow him to challenge his detention, see the body of evidence against him, and speak with a lawyer. None of these are rights that have been accorded to Padilla, and the 4th Circuit seems to have a difficult time comprehending their existence.

We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.

This ruling is in desperate need to be reconciled with previous precedent, as well as an apparent reading of due process that we have these basic rights of due process guaranteed by the 5th and 6th amendment, Hamdi provides the recent precedent that the 4th Circuit cannot seem to reconcile with, but how does the 4th circuit get off reconciling this ruling with ex parte Milligan?

Congress could grant no such power (to suspend habeas corpus and try US citizens in military Courts) and to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest Constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.

So the Ex Parte Milligan Court couldn't imagine how the President reconciles military tribunals with the 6th Amendment, while Luttig and the 4th Circuit have no problem giving the President power to bypass the legal system in its entirety. Luttig bumbles inarticulately to try to reconcile his decision with Milligan and fails miserably attempting to turn the Milligan decision into a statement of innocence of Milligan instead of the statement of Constitutionally guaranteed rights that it was.

The establishment press insists that the nomination battles are about abortion. They are liars. The folks at DailyKos insist that its really about interstate commerce, they are wrong. The real battle in the Supreme Court is about all of these things, but most of all about Presidential power. All of the discussed potential nominees to replace Justice O’Connor share one common trait. Most of them are against privacy, this is true, most want to eliminate Congress' interstate commerce power, this also is true, but what they all share is a strong deference to Presidential power. Allowing the kind of misuse of power that has gone on in the government's treatment of Padilla would spell the end of American Democracy as we know it.

Cross posted at DailyKos