MR
09/09/05
Padilla v Hanft: A Very Dangerous Decision
by Michael Steinberg

Today's decision in Padilla v Hanft is bad news, though exactly how bad it is will depend on what the Supreme Court does with it -- and who's on that court. The long and the short of it is that the Fourth Circuit Court of Appeals upheld the right of the government to hold even US citizens indefinitely, or for the duration of anything the government chooses to call a war.

Of course, the decision is more complicated than that. One of the complications is the stance that Jose Padilla's lawyers took. They were hoping to have a clear-cut ruling on the legal issues involved, so instead of hearing testimony and litigating evidentiary issues -- which could take years -- they moved for summary judgment.

Padilla's lawyers were saying, Even if everything the US government alleges were true, the President still doesn't have the power to hold a US citizen without trial. They did not contest the government's factual charges at this stage.

The Fourth Circuit chose to interpret this in a very odd way, claiming that the parties had agreed to these facts. This is something Padilla's lawyers kept denying, and the Court's insistence on this point is one of the stranger things about the decision. Nonetheless, you can read it as saying, The government has yet to prove these allegations; but if it succeeds in doing so, Padilla has to stay in jail.

That sounds like a small ray of hope. But take a look at some of the court's reasoning and there's not much hope left.

For one thing, the government's case against Padilla always seemed to be that he was in the US to carry out an act of terrorism. He was supposed to have plotted to explode a "dirty bomb," and even though the government has abandoned that contention -- now he's supposed to have plotted to blow up apartment buildings by starting a gas leak -- he's still described in most of today's news stories as the "dirty bomb" suspect.

But little of the Fourth Circuit decision depends on allegations of domestic terrorism. Instead, the court relied on Padilla's supposed activities in Afghanistan.

The court found that Padilla needed to be detained "to prevent his return to the battlefield." Yet there was no evidence that he was ever on a battlefield.

According to the court, "Padilla . . . received explosives training in an al Qaeda affiliated camp, and served as an armed guard at what he understood to be a Taliban outpost. When United States military operations began in Afghanistan, Padilla . . . moved from safehouse to safehouse to evade bombing or capture. 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.' Padilla eventually escaped to Pakistan, armed with an assault rifle."

He was trained, hid, and escaped; that's the sum of this. At no time did Padilla -- assuming for the moment that any of this is true -- even see an American while he was in Afghanistan. Yet the Court concluded that Padilla had taken up arms against the United States and found his conduct equivalent to directly bearing weapons against American soldiers.

It is hard to see his conduct as any more reprehensible than simply attending an al Qaeda camp. Most of it amounts to self-preservation. The bombing of Afghanistan was intense and widespread; most people tried to hide from it. And it should be no surprise that Padilla was armed when he escaped. The Afghanistan/Pakistan border is one of the world's most lawless areas at the best of times, and crossing the border without a gun would be foolish.

In short, the Fourth Circuit set the threshold for "combat" about as low as possible.

The next step, though, is where the decision shows its true frightfulness. In Hamdi v Rumsfeld the US Supreme Court ruled that the detention of an American citizen classed by the government as an enemy combatant was justified, but it appeared to limit its decision to the facts of that case -- Hamdi was captured in Afghanistan and had clearly been part of a military force.

Lower courts like the Circuit Courts of Appeal are bound by Supreme Court rulings. Padilla's lawyers had to argue that even though Hamdi was the law, it did not permit holding someone who was arrested within the US.

The court rejected this argument. It said that Padilla's detention was sanctioned by the Authorization for Use of Military Force passed by both Houses of Congress on September 18, 2001, which "applies even more clearly and unmistakably to Padilla than to Hamdi" because Padilla intended an act of terrorism on American soil.

This might come as a shock to most lawyers, because the AUMF (as the court terms it) looked like something about the use of the military against foreign enemies. It authorizes the President

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This is a far too elastic kind of authorization, but stretch it as you like, it does not seem to permit domestic military action.

That's surely implied, though, in the Fourth Circuit's decision. Padilla's is a more pressing case, it stated, because he threatens to "return to battle in the ongoing armed conflict between the United States and al Qaeda in Afghanistan."

In other words, the Court is taking the rhetoric that "the world is a battlefield" as literal truth. It interprets the AUMF as permitting the President to do whatever he deems necessary to prevent domestic terrorism, including detaining citizens indefinitely without trial. (In citing the AUMF the Court tends to omit the qualifying phrase "by such nations, organizations, or persons [who carried out the 9/11 attacks].)

We are close -- terrifyingly so -- to an explicit ruling that the AUMF repeals all Constitutional restraints in the face of a declaration by the executive that a person is contemplating an act of terror. (The breadth of the new definitions of "terror" is also shocking, but that is another story.) If the battle is here, and the "laws of war" allow indefinite detention to prevent a combatant from returning to the battlefield, then they allow arbitrary detention and probably even the use of the military against American citizens within the borders of the US. This is a very dangerous decision indeed.


Michael Steinberg is the author of The Fiction of a Thinkable World: Body, Meaning, and the Culture of Capitalism published this year by Monthly Review Press and essays in professional journals in history, music, and law. He and his wife Loret, a photographer and professor of documentary photography, live in Rochester, New York, under the supervision of two domestic medium-hair cats. He will give a reading from his book on Thursday, October 6, 2005, at Robin’s Book Store (108 South 13th Street, Philadelphia, PA 19107 -- Tel: 215-735-9600).
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