President Bush does not have power to detain an American citizen seized on U.S. soil as an enemy combatant, a federal appeals court ruled Thursday in a decision that could force a man held in a dirty bomb plot to be tried in civilian courts.
In a 2-to-1 ruling, a three-judge panel of the 2nd U.S. Circuit Court of Appeals said the detention of Jose Padilla was not authorized by Congress and that Bush could not designate Padilla as an enemy combatant without the authorization.
“As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation,” the court said.
“But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress,” it added.
Padilla is accused of plotting to detonate a “dirty bomb,” which uses conventional explosives to disperse radioactive materials. The former Chicago gang member was arrested in May 2002 and within days was moved to a naval brig in Charleston, S.C.
This strikes me as a correct ruling. Indeed, I’d go further and argue that Congress doesn’t/shouldn’t have the authority to suspend the due process rights of U.S. citizens. I know there are precedents to the contrary with respect to both congressional and presidential authority to do this sort of thing during wartime, going back at least to the Civil War, but have never agreed with them.
I understand the need to maintain secrecy in national security matters and that some of the evidenciary rules that apply to normal criminal trials are unworkable when sensitive intelligence collection methods are involved. I don’t mind necessary waivers being granted in such cases, as long as the rules are laid out in advance and some judicial oversight is maintained. The fundamental rights of American citizens being charged with criminal matters should never be waived, but reasonable protections of classified sources and methods could be put in place without significant harm.
