Enemy Combatants, Part IV
The Fourth Circuit Court of Appeals Padilla v. Hanft opinion header reads like a Who’s Who of the liberal wing of the American legal community. Amici filing briefs in support of the appellee Al-Qaeda member Jose Padilla included the following:
--National Association of Criminal Defense Lawyers
--People for the American Way Foundation and the Rutherford Institute
--The Brennan Center for Justice at the New York University School of Law
--American Civil Liberties Union
--Janet Reno
--Center for National Security Studies
--Democratic Members of Congress
All the above have been arguing with increasing force for the past four years what every good liberal takes as the gospel truth: that the President has rolled back civil liberties in the U.S. under a pretext of war and that he has acted unconstitutionally in declaring U.S. citizens—citizens!—something he ludicrously calls “enemy combatants,” which, if we’re not careful, will soon no doubt include liberal editorial writers, revealers of Halliburton malfeasance, labor union officials and extreme bike messengers everywhere. In fact, they contend, this Administration has presided over a severe eroding of the rule of law and has done incredible damage to the Constitution of the United States.
Wrong.
Again.
I’ve written at length about the law of enemy combatants (you can find Part I here, Part II here and Part III here) and its affirmation by the Supreme Court last year in Hamdi v. Rumsfeld. In my most recent post of the subject, I concluded:
In short, Hamdi affirmed what the President has been saying all along: as President he has the duty and the authority to detain those who would wage war against the United States and that this authority does not implicate the procedures or the mechanisms of the criminal law in the least, even if the detainee is a U.S. citizen.
That much is clear, unless, of course, one is a liberal district court judge with an axe to grind. You may recall the media frenzy with the district court ruled earlier this year that “Padilla’s detention is in violation of the Constitution and the laws of the United States and that Padilla must therefore either be criminally charged or released.” This received a lot of attention in the MSM insofar as it was an apparent validation of the view of the liberal legal establishment (and, it must be admitted, part of the conservative establishment that leans towards libertarianism as well).
The only problem was that the District Court’s decision, as this Fourth Circuit opinion makes crystal clear, is flatly incompatible with Supreme Court precedent. Writing for the unanimous 3-judge (one Republican nominee, two Democratic) panel, Judge (and possible Supreme Court nominee) Luttig concluded that:
As the [Congressional Authorization of the Use of Military Force or “AUMF”] authorized Hamdi’s detention by the President, so also does it authorize Padilla’s detention. Under the facts as presented here, Padilla unquestionably qualifies as an “enemy combatant” as that term was defined for purposes of the controlling opinion in Hamdi. Indeed, under the definition of “enemy combatant” employed in Hamdi, we can discern no difference in principle between Hamdi and Padilla. Like Hamdi, Padilla associated with forces hostile to the United States in Afghanistan. Compare J.A. 19-23 (detailing Padilla’s association with al Qaeda in Afghanistan and Pakistan), with Hamdi, 124 S.Ct. at 2637 (describing Hamdi’s affiliation with the Taliban in Afghanistan). And, like Hamdi, Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi. Compare J.A. 21 (averring that Padilla was “armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States”), and id. at 20-21 (alleging that Padilla was “armed with an assault rifle” as he escaped to Pakistan), with Hamdi, 124 S. Ct. at 2642 n.1 (noting that the asserted basis for detaining Hamdi was that he “carr[ied] a weapon against American troops on a foreign battlefield”), and id. at 2637 (quoting Mobbs Affidavit that Hamdi had “‘surrender[ed] his Kalishnikov assault rifle’” to Northern Alliance forces (alteration in original)). 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.
Again and again, the same liberal legal groups, and the politicians they support, have charged that the President’s assertions of authority have no basis under U.S. law. It is a testimony to the depth of their ideologically motivated hatred that they have kept and will keep up making such charges even though, again and again, our courts have completely vindicated every one of the President’s legal positions.
Now, it is perfectly permissible to hold a contrary view to established precedent and to disagree with an opinion. Our legal culture is enriched by such dissents. However, it is quite another thing altogether to charge—as all of the liberal groups listed above do—that the position of the President is wholly without support, illegal, contrary to the Constitution and that it represents an abuse of power.
But to stop doing so would be to admit that they were wrong and that the Bushitler knew his constitutional law better than the acolytes of the Brennan Center.
Don’t hold your breath.
--National Association of Criminal Defense Lawyers
--People for the American Way Foundation and the Rutherford Institute
--The Brennan Center for Justice at the New York University School of Law
--American Civil Liberties Union
--Janet Reno
--Center for National Security Studies
--Democratic Members of Congress
All the above have been arguing with increasing force for the past four years what every good liberal takes as the gospel truth: that the President has rolled back civil liberties in the U.S. under a pretext of war and that he has acted unconstitutionally in declaring U.S. citizens—citizens!—something he ludicrously calls “enemy combatants,” which, if we’re not careful, will soon no doubt include liberal editorial writers, revealers of Halliburton malfeasance, labor union officials and extreme bike messengers everywhere. In fact, they contend, this Administration has presided over a severe eroding of the rule of law and has done incredible damage to the Constitution of the United States.
Wrong.
Again.
I’ve written at length about the law of enemy combatants (you can find Part I here, Part II here and Part III here) and its affirmation by the Supreme Court last year in Hamdi v. Rumsfeld. In my most recent post of the subject, I concluded:
In short, Hamdi affirmed what the President has been saying all along: as President he has the duty and the authority to detain those who would wage war against the United States and that this authority does not implicate the procedures or the mechanisms of the criminal law in the least, even if the detainee is a U.S. citizen.
That much is clear, unless, of course, one is a liberal district court judge with an axe to grind. You may recall the media frenzy with the district court ruled earlier this year that “Padilla’s detention is in violation of the Constitution and the laws of the United States and that Padilla must therefore either be criminally charged or released.” This received a lot of attention in the MSM insofar as it was an apparent validation of the view of the liberal legal establishment (and, it must be admitted, part of the conservative establishment that leans towards libertarianism as well).
The only problem was that the District Court’s decision, as this Fourth Circuit opinion makes crystal clear, is flatly incompatible with Supreme Court precedent. Writing for the unanimous 3-judge (one Republican nominee, two Democratic) panel, Judge (and possible Supreme Court nominee) Luttig concluded that:
As the [Congressional Authorization of the Use of Military Force or “AUMF”] authorized Hamdi’s detention by the President, so also does it authorize Padilla’s detention. Under the facts as presented here, Padilla unquestionably qualifies as an “enemy combatant” as that term was defined for purposes of the controlling opinion in Hamdi. Indeed, under the definition of “enemy combatant” employed in Hamdi, we can discern no difference in principle between Hamdi and Padilla. Like Hamdi, Padilla associated with forces hostile to the United States in Afghanistan. Compare J.A. 19-23 (detailing Padilla’s association with al Qaeda in Afghanistan and Pakistan), with Hamdi, 124 S.Ct. at 2637 (describing Hamdi’s affiliation with the Taliban in Afghanistan). And, like Hamdi, Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi. Compare J.A. 21 (averring that Padilla was “armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States”), and id. at 20-21 (alleging that Padilla was “armed with an assault rifle” as he escaped to Pakistan), with Hamdi, 124 S. Ct. at 2642 n.1 (noting that the asserted basis for detaining Hamdi was that he “carr[ied] a weapon against American troops on a foreign battlefield”), and id. at 2637 (quoting Mobbs Affidavit that Hamdi had “‘surrender[ed] his Kalishnikov assault rifle’” to Northern Alliance forces (alteration in original)). 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.
Again and again, the same liberal legal groups, and the politicians they support, have charged that the President’s assertions of authority have no basis under U.S. law. It is a testimony to the depth of their ideologically motivated hatred that they have kept and will keep up making such charges even though, again and again, our courts have completely vindicated every one of the President’s legal positions.
Now, it is perfectly permissible to hold a contrary view to established precedent and to disagree with an opinion. Our legal culture is enriched by such dissents. However, it is quite another thing altogether to charge—as all of the liberal groups listed above do—that the position of the President is wholly without support, illegal, contrary to the Constitution and that it represents an abuse of power.
But to stop doing so would be to admit that they were wrong and that the Bushitler knew his constitutional law better than the acolytes of the Brennan Center.
Don’t hold your breath.
