District Court Orders Padilla Released

JB

The District Court held that the President did not have authority to hold Padilla as an enemy combatant under the terms of the September 18th, 2001 Authorization of Military Force against Al Qaeda (AUMF). It followed Justice O'Connor's plurality opinion in Hamdi, which read the AUMF quite narrowly to cover the right to detain persons fighting against American forces and captured on the battlefield. Hamdi, the court explained, was arrested at O'Hare Airport and held as a material witness. He was not arrested carrying arms on a foreign battlefield.

Nor did the President have inherent authority to detain Padilla outside the terms of the AUMF because he would be acting contrary to explicit Congressional command. Congress had passed the Non-Detention Act, which states that "[n]o citizen shall be arrested or otherwise detained by the United States except pursuant to an Act of Congress." Thus, the court rejected the Bush Administration's claim that it could not be bound even by explicit Congressional laws that restricted the President's war making authority.

This opinion is a setback for the Administration. It rejects most of the Administration arguments about inherent Presidential power and gives little deference to executive construction of the AUMF, arguing that to do so would give the President too much unreviewable authority and would undermine the separation of powers and the rule of law. The opinion also suggests that at least one lower court will read Hamdi as strongly circumscribing the President's maximalist claims about executive power.

Obviously, this isn't the end of the litigation. The Administration can still appeal to the 4th Circuit, which has been quite friendly to its claims. And the Supreme Court might take the case again if the 4th Circuit reads Hamdi too narrowly. We'll just have to see what happens next.