- The Washington Times - Thursday, March 3, 2005

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.” Indeed, the judge views detention of enemy combatants as punishment and not, as the Supreme Court plurality held last summer in Hamdi v. Rumsfeld, a “fundamental and accepted” part of war. Captured enemy combatants must be detained until the end of hostilities, because though initial attacks may be thwarted, combatants and terrorists will try again if freed. Should Judge Floyd still disagree, he could meet with the terrorists who, after signing peace pledges, were set free from Guantanamo Bay only to wage terrorism and face recapture. Or better still, he could rent “Saving Private Ryan” and watch Tom Hanks’ character suffer death at the hands of an enemy soldier he had set free earlier in the film. War is more serious than, and should not be confused with, mere criminal activity.

Finally, the court completely ignored Supreme Court precedent. During World War II, U.S. citizen Herbert Haupt was captured while trying to blow up bridges, railroads and manufacturing plants for Nazi Germany. The Supreme Court held in its “Ex parte Quirin” decision that Haupt could be tried by military tribunal, and he was subsequently executed. Haupt and Padilla were both United States citizens; both planned acts of destruction on behalf of an enemy of the United States; and both were captured on U.S. soil, oddly enough, in Chicago. Yet the court practically dismissed Quirin out of hand, even stating that “Quirin involved a war that had a definite ending date. The present war on terrorism does not.”

Enter Encyclopedia Brown. The boy detective creation of Donald Sobol, Brown could solve any mystery over dinner and before dessert. He once examined a sword that was supposedly inscribed and presented “at the First Battle of Bull Run” in 1861 and immediately classified it a hoax. How so? In 1861, there hadn’t yet been a Second Battle of Bull Run, so nobody could know the 1861 battle was the “first,” and not simply the only, battle.

So, a question for the judiciary: How did the Supreme Court know in 1942, the year Quirin was decided, that World War II would have “a definite ending date” in 1945? Do presidents in wars with known ending dates have more discretion to fight the enemy than presidents in wars where the conclusion is unknown? What’s the matter? You haven’t touched your dessert.

Michael Billok, a former U.S. Navy submarine officer, is a law clerk at the D.C. office of Gibson, Dunn, and Crutcher, and an associate editor of the Georgetown Law Journal.