Constitutional Law - Separation of Powers - Fourth Circuit Holds That Congress Authorized the President to Detain American Citizens Captured on U.S. Soil as Enemy Combatants

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CONSTITUTIONAL LAW--SEPARATION OF POWERS--FOURTH CIRCUIT HOLDS THAT CONGRESS AUTHORIZED THE PRESIDENT TO DETAIN AMERICAN CITIZENS CAPTURED ON U.S. SOIL AS ENEMY COMBATANTS.--Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), cert. denied, 126 S. Ct. 1649 (2006).

Federal courts often look to Congress for help in defining executive power during wartime, treating the President's authority as dependent on congressional authorization. In Hamdi v. Rumsfeld, (1) the Supreme Court held that the President's detention as an "enemy combatant" of an American citizen captured in Afghanistan was authorized by Congress's 2001 Authorization for Use of Military Force (2) (AUMF). (3) Recently, in Padilla v. Hanft, (4) the Fourth Circuit concluded that the power under this authorization did not vary based on the "locus of capture." (5) Thus, the President could detain as an enemy combatant an American arrested in the United States as well as one captured abroad. In so holding, the Fourth Circuit properly recognized courts' inability to weigh national security interests but ignored the distinctive threats that the domestic seizure of American citizens poses to civil liberties. By ignoring these threats, the court foreclosed the possibility of requiring a clear statement from Congress before recognizing the detention power claimed by the President. As a result, the Fourth Circuit continued an approach, evident in Hamdi, that increases the role of courts--but decreases the role of Congress--in defining presidential power. Courts should instead require an explicit statement authorizing such detentions to ensure Congress's engagement with the novel issues presented by the war on terror.

On May 8, 2002, Jose Padilla, an American citizen, was arrested in Chicago's O'Hare Airport as a material witness to a grand jury investigation of the September 11th terrorist attacks. (6) Shortly thereafter, President Bush ordered that he be taken into custody as an enemy combatant who had "closely associated with al Qaeda," had engaged in "conduct that constituted hostile and war-like acts," and represented "a continuing, present and grave danger to the national security of the United States." (7) Padilla's attorney petitioned on his behalf for a writ of habeas corpus, alleging that Padilla's detention violated the Fourth, Fifth, and Sixth Amendments and the Suspension Clause of the Constitution. (8) The government responded that Padilla's detention fell within the inherent power of the President and was also authorized by the AUMF. (9)

The district court granted summary judgment in favor of Padilla. Relying on Ex parte Milligan (10) and the Non-Detention Act, (11) the court reasoned that the President lacked the power to seize an American citizen domestically as an enemy combatant absent a specific authorization from Congress. (12) Interpreting the AUMF to "allow for the greatest possible accommodations between those liberties and the exigencies of war," (13) the court held that although it may be "necessary and appropriate" to detain an American citizen who is captured on the battlefield, "the same is [not] true when a United States citizen is arrested in a civilian setting." (14) The court concluded that "there [was] no language in the AUMF that 'clearly and unmistakably' grant[ed] the President the authority to hold" Padilla. (15) Given the absence of clear congressional authorization and the background prohibition embodied in the Non-Detention Act, the President's inherent authority was "at its lowest ebb"--insufficient to provide an independent basis for Padilla's detention. (16)

A unanimous panel of the Fourth Circuit reversed, finding that the AUMF authorized Padilla's detention. (17) Writing for the panel, Judge Luttig (18) read Hamdi as finding congressional authorization for detention when needed to "prevent a combatant's return to the battlefield." (19) Because "Padilla pose[d] the same threat of returning to the battlefield as Hamdi," Judge Luttig rejected Padilla's argument that overseas capture was part of the "narrow circumstances" to which the Hamdi plurality had confined its holding. …