While a trial level opinion in this area merely sets the ball rolling for future appellate proceedings, it is worth noting that today a Bush-appointed District Judge in South Carolina ruled that the Executive Branch has no power to detain Jose Padilla, the alleged dirty bomber whose case previously went up to the Supreme Court. The opinion is available here. The Supreme Court ruled last summer that Padilla’s habeas action had been filed in the wrong district; this habeas case was filed in the right district days after the Supeme Court’s decision. Today’s opinion was authored by Judge Henry Floyd, who was nominated by George W. Bush. Judge Floyd held that there was simply no authority for the Executive Branch to hold Padilla:
[T]the Court is of the firm opinion that it must reject the position posited by [the Government that it has inherent power to detain enemy combatants]. To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this Nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.
For the Court to find for Respondent would also be to engage in judicial activism. This Court sits to interpret the law as it is and not as the Court might wish it to be.
According to Judge Floyd, the government had to handle this as a criminal matter:
Simply stated, this is a law enforcement matter, not a military matter. The civilian authorities captured Petitioner just as they should have. At the time that Petitioner was arrested pursuant to the material arrest warrant, any alleged terrorist plans that he harbored were thwarted. From then on, he was available to be questioned -and was indeed questioned – just like any other citizen accused of criminal conduct. This is as it should be.
He added:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Const. Art. 1, § 9, cl. 2. This power belongs solely to Congress. Since Congress has not acted to suspend the writ, and neither the President nor this Court have the ability to do so, in light of the findings above, Petitioner must be released.
He concluded:
If the law in its current state is found by the President to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the President should prevail upon Congress to remedy the problem. For instance, if the Government’s purpose in detaining Petitioner as an enemy combatant is to prevent him from “returning to the field of battle and taking up arms once again[,]” Hamdi, 124 S.Ct at 2640, but the President thinks that the laws do not provide the necessary and appropriate measures to provide for that goal, then the President should approach Congress and request that it make proper modifications to the law. As Congress has already demonstrated, it stands ready to carefully consider, and often accomodate, such significant requests.
Thanks to Howard for the link.
UPDATE: Armchair Genius properly notes that the title of my post is a bit inaccurate; technically the Judge held that Padilla cannot be held as an enemy combatant, but that the government could continue to hold him if they charge him with a crime. In any event, the next step is the Fourth Circuit.
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