Padilla

Marty Lederman

The U.S. Court of Appeals for the Fourth Circuit (per Judge Luttig, joined by two Clinton appointees, Judges Michael and Traxler) today upheld the detention of Jose Padilla as having been authorized by Congress's September 2001 Authorization to Use Military Force (AUMF). (Thanks to Howard Bashman for the link.) A full account from Lyle Denniston can be found here.

To the extent actual legislative intent matters, I find it very difficult to believe that Congress actually "intended," through the AUMF, to authorize the indefinite detention of American citizens captured in the U.S. under circumstances such as those in the Padilla case: Would Congress truly have intended to supersede the ordinary civil justice system for U.S. citizens who are detained here at O'Hare Airport and suspected of conspiring to violate U.S. criminal laws, so as to authorize their indefinite detention -- that is, detention until the war against Al Qaeda ends -- without trial? I must concede, however, that it's very difficult to figure out how to challenge Judge Luttig's logic about why such a conclusion follows from the plurality decision in Hamdi (and from Quirin, to the extent one thinks that case should have any precedential value), once one accepts the following alleged "fact," on which Luttig places great emphasis:

The Government's explanation of why Padilla was detained -- and why he was an "enemy combatant" covered by the AUMF -- has been a constantly moving target. At first, Padilla was detained as a "material witness." Then, if I recall correctly, the Administration alleged that he was coming to the U.S. to study possible Al Qaeda targets -- in the President's own words, "Padilla engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism." At one point, the Attorney General indicated that Padilla was detained as the alleged "dirty bomber" who was preparing to strike a U.S. city with a radiological dispersal device of some kind. Subsequently, the unclassified "Mobbs declaration" essentially reiterated this justification. Two years later, this justification morphed considerably during a press conference by Deputy AG James Comey, in which he said that Padilla's intended mission was the destruction of U.S. apartment buildings with natural gas. (If this chronolgy is wrong or incomplete, please let me know.)

Most recently, however, the Administration alleges (according to Judge Luttig) that Padilla fought on the actual battlefield in Afghanistan and that his detention at O'Hare therefore is an appropriate means of keeping him from returning to Afghanistan to fight. This strikes me as extremely counterfactual, but it looks as though that's the story the Administration is now pressing. And it's certainly the predicate on which today's decision is based. [UPDATE: The military's explanation is not quite as Judge Luttig describes it, as I discuss further in my next post.] Once one accepts that predicate -- and of course Padilla presumably will have some opportunity to challenge it -- as the court does for purposes of today's decision, then it becomes difficult to explain why Padilla ought to be treated differently from Hamdi. (If you think otherwise, please feel free to explain why in the Comments section.)

Even so, the panel had one more serious obstacle -- it had to distinguish away the Supreme Court's Nineteenth Century opinion in Ex parte Milligan. Here's what Judge Luttig writes:

Finally, Padilla argues that, even if his detention is authorized by the AUMF, it is unlawful under Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). In Milligan, the Supreme Court held that a United States citizen associated with an anti-Union secret society but unaffiliated with the Confederate army could not be tried by a military tribunal while access to civilian courts was open and unobstructed. Id. at 6-7, 121. Milligan purported to restrict the power of Congress as well as the power of the President. Id. at 121-22 ("[N]o usage of war could sanction a military trial . . . for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power . . ."). Quirin, however, confirmed that Milligan does not extend to enemy combatants. As the Court in Quirin explained, the Milligan Court's reasoning had "particular reference to the facts before it," namely, that Milligan was not "a part of or associated with the armed forces of the enemy." See 317 U.S. at 45. The Hamdi plurality in turn reaffirmed this limitation on the reach of Milligan, emphasizing that Quirin, a unanimous opinion, "both postdates and clarifies Milligan." 124 S. Ct. at 2643. Thus confined, Milligan is inapposite here because Padilla, unlike Milligan, associated with, and has taken up arms against the forces of the United States on behalf of, an enemy of the United States.

So, here's the critical distinction: Both Padilla and Milligan allegedly took up arms against the U.S. But whereas Padilla -- not a member of Al Qaeda -- is alleged to have been "associated with" Al Qaeda, Milligan was "unaffiliated with the Confederate army," but was instead "merely" "associated with an anti-Union secret society."

It is, of course, preposterous to think that the Milligan decision actually turned on the fact that Milligan's affliations were with a secret society, sympathetic to the Confederacy, devoted to defeating the Union, rather than with the Confederate army itself. But, per Quirin, as construed in Hamdi, as construed in today's Padilla decision, that's apparently all that is left of the once-landmark Milligan ruling. [ADDENDUM: Eric Muller explains how Judge Luttig also fails to adequately distinguish the Court's decision in Ex Parte Endo.]
Posted 12:28 PM by Marty Lederman [link]