Balkinization  

Friday, September 09, 2005

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.]

Comments:

The "he could return to the battlefield" justification is probably the weakest of the lot considering that Padilla was placed in military detention at a time when he was subject to the jurisdiction of a court and in jail. On the undisputed facts, that was not in the cards for Padilla.

Also, one of the really important facts in Quirin was that Congress had established a set of military tribunals. Here, in contrast, Congress had no such law (except to the extent that the Court Martial provisions of the Uniform Code of Military Justice applied), the Non-Detention Act was in place, the Writ of Habeas Corpus has not been suspended (and the Government is not arguing expressly that it has been) and the Patriot Act had recently been passed in which Congress set forth the conditions that it thought justified detaining suspected terrorists in light of 9-11 and roughly contemporaneously with the authorization of military force.

Every other court that has examined the case on the merits has concluded that Quirin is not controlling in this case.

Equally important, 4 Justices of the Supreme Court in the Padilla case itself held that he was entitled to release on the basis of the non-detention act, Scalia's opinion in Hamdi makes it clear that in his opinion Padilla is entitled to a criminal trial rather than a military detention, and the plurality opinion took great care to distinguish a battlefield detention from what happened in this case. Doesn't anyone recall the "blank check" language in the plurality decision in Hamdi? Battlefield detentions are not special because they involve people with a great propensity than non-battlefield terrorists to offend again, they are special because the mechanics of providing traditional due process are unworkable there. Also, because the plurality decision in Hamdi was a mere plurality, stare decisis does not compel Scalia to go along with it in Padilla's case.

In essence, what the 4th Circuit has done in this case, rather than being compelled by Quirin, is an adoption of the Thomas opinion in the Hamdi case, which was not joined by any other justice on the Supreme Court. The last time something like that happened, when the 5th Circuit basically defied the U.S. Supreme Court in a death penalty case and adopted the reasoning of a minority view of the court, the 5th Circuit was slapped down summarily by the U.S. Supreme Court.
 

Milligan is dead based on this reading of Quirin and Hamdi. I was taught Milligan was a bulwark of our liberty.

One nit to a previous commentor. Congress did not authorize military tribunals for the defendants or WWII, rather, the act that authorized court-martials (prior to UCMJ) did not preclude the creation of tribunals.
 

It would be more intellectually honest for Mr. Lederman to admit that Milligan didn't really survive Quirin. (It certainly violates normal jurisprudential principles to pretend that Milligan is a higher authority.) However, it is hard for people with Mr. Lederman's background to admit that FDR wasn't an ACLU member and a 60s liberal, which leads them into intellectual contortions.
 

I believe that this may be a case we will be apologizing for 50 years from now, as we did with the Japanese-American internment cases. I have a three-year old daughter. Do I want her to apologize for what my generation did to help her reach age 53, at age 53? You bet. I'm sorry, but the Constitution is not a suicide pact. Tell me that Mr. Padilla is not America's enemy and I am on your side. Tell me anything else but that and I am not.
 

Quirin didn't have to be the end of Milligan and it seems strange to me that for over 58 years noone thought that it had driven a stake through the heart of the Great Writ. Quirin was an exception where the Court extraordinarily met in the summer and then took time to write the decision (because they were unsure how they were going to justify the result which had been dictated by political expediency). All of a sudden in 2001, Quirin becomes central to the government's case for tribunals, but nothing says judges have to buy the government's reading.

1. There are differences between the AUMF and the Declaration of War in 1941.

2. Quirin referred to the lawfulness of the tribunal and not the detention. The authority for the detention is inferred by Luttig from a footnote in Quirin.

3. It ought to trouble the 4th Circuit (and I think it troubled the Supreme Court) that there is no definitive set of events that will signal the end of this war.
 

Paul,

How much principle is worth one life? Three thousand fathers, mothers, sisters, husbands, brothers, wives were lost on 9/11. Mr. Padilla is not a scapegoat. Can you tell me he's innocent? Law that is not sword and shield, for the society which has enacted it, is insanity.
 

I don't think OJ is innocent either, but it's not really my call, is it? If protecting "one life" is our guide, a lot more than Padilla will be sacrificed.

Anyway, question. The opinion noted Padilla stipulated to a lot of scary "facts" for the purpose of the ruling. The facts are not present in the district opinion, which has vanilla stuff about how he was captured that are not very damning at all.

Anyone know why things changed?
 

Paul Gowder, you are misstating the facts: Milligan was decided after the war was over.
 

Paul, "Even when Milligan was decided, the Union was facing a threat to its existence: it had already been split down the middle, and the war did not start off well" sounds like the Supreme Court ruling was handed down during the Civil War, not the original trial of Milligan. I can see why someone might be confused.
 

nk: jose padilla is innocent until proven guilty. this whole hubbub is about what kind of trial he gets. so yes, he is innocent.

anderson: nope, no one ever does. its kind of like the "protect the children" argument - its an immediate bullshit cue. the one thing we must all remember is to retain useful ways to break with law, because nothing is more certain that the forms of law remain when all justice is gone. here, we see the shape and form of law, but no substance.
 

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