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Erring on the side of terrorists

Constitutional scholar Bruce Fein, in the Washington Times, dissects the 2-1 Court of Appeals decision holding that the president is not empowered to detain as prisoners of war illegal enemy combatants linked to al Qaeda and apprehended in the United States. Fein points out that Congress authorized the president to employ “all necessary and appropriate force” against any nation, organization, or persons implicated in the terrorist attacks to thwart “any future acts of international terrorism against the United States.” This language seems to encompass holding Jose Padilla, a known al Qaeda operative trained by that terrorist outfit in the use of explosives. As Eugene Volokh has written, “The Resolution provided for the use of military force against al Qaeda. Military force has always been understood to include the power of military detention. Al Qaeda was an organization that was known to have members from many countries, and it was quite foreseeable that it would have some American citizens as members, too. There was no need, I think, [for Congress] to say ‘all necessary and appropriate force, including military detention, both of non-U.S. citizens and U.S. citizens.’”
If the Court of Appeals had ruled that the president is authorized by Congress to hold Padilla, it would then have had to decide whether the congressional act is constitutional. To me, this issue (as applied to Padilla’s detention) presents a more difficult question. However, Fein argues that Padilla can “be likened to the Nazi saboteurs during World War II, including an American citizen, who were apprehended in the United States, tried by a military commission as ‘unlawful combatants,’ and executed. The Supreme Court in ex parte Quirin (1942) sustained the constitutionality of President Franklin D. Roosevelt’s interdiction and execution of the saboteurs.”
The Court of Appeals considered Padilla to have been apprehended “outside a zone of combat,” and it limited the scope of its decision to such individuals. Fein correctly responds that this aspect of the court’s decision reveals a fundamental ignorance of the nature of our struggle against terrorism. If 9/11 means anything, it means that the U.S. is now at the heart of the combat zone. As Fein puts it, “judges chronically need education in the obvious.”

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