Padilla, Quirin and Detention; Let the Commander-in-Chief Command

Article excerpt


On Feb. 28, the U.S. District Court for the District of South Carolina directed the release of Jose Padilla, the terrorist who planned to detonate a "dirty bomb" in a major United States city. For those unfamiliar with his case, Padilla was arrested on May 8, 2002, in Chicago's O'Hare International Airport after arriving from Pakistan. He was subsequently designated an enemy combatant by the president and transferred to a military brig in South Carolina. Though the first appeal of his detention was initially successful, the Supreme Court held last summer that it had been filed in the wrong court, sending Padilla back to square one.

And yet on Feb. 28, Padilla advanced to square 100. After Padilla appealed again in the correct court, U.S. District Judge Henry Floyd ordered his release by April 14 (in order to have time to complete his duties as a citizen to file and pay his taxes, no doubt). In his 23-page ruling, Judge Floyd held that Congress never authorized military detention of citizens, and that the president does not have this authority without congressional authorization.

This conclusion is plausible only if certain constitutional principles are ignored. The Constitution grants Congress the powers to "raise and support armies," "to provide and maintain a Navy" and "to declare war," but of equal importance is that Congress only has the powers listed in Article I, and nothing more. In contrast, not only is the president the "commander-in-chief of the Army and Navy," but he also enjoys executive powers beyond those specifically mentioned in Article II.

The bottom line is this: In war, Congress' powers are limited to funding the military and authorizing the use of military force. But after authorization is given, the power to wage the war rests with the president, not with Congress. There can be only one commander-in-chief, not 536.

But the court on Feb. 28 held that, despite Congress' authorization after the September 11 attacks, for the president to use "all necessary and appropriate force" against terrorists planning attacks against the United States, this did not include the power to detain Padilla. On the contrary, the court held that military detention was not necessary nor appropriate for a man who, even without the alleged "dirty bomb" plot, admits to accepting an assignment given by Khalid Sheikh Mohammed, al Qaeda's No. 3, to blow up apartment buildings in major cities.

Instead, much like a certain presidential candidate, Judge Floyd believes that "this is a law enforcement matter, not a military matter. …