Judge Luttig gets it right

I’ve read the Fourth Circuit’s decision in the Padilla case which, as described and linked to here, decided that the president possesses the authority to detain militarily a U.S. citizen who took up arms on behalf of al Qaeda in a foreign combat zone and who was captured in the U.S. where he had come to launch an attack on behalf of al Qaeda.
Judge Luttig’s unanimous decision seems clearly correct in that it follows from the Supreme Court’s plurality decision in the Hamdi case. That opinion concluded that the president had the authority to detain without trial an American citizen who had taken up arms on behalf of al Qaeda in Afghanistan and who was captured there. The only apparent difference between Hamdi and Padilla is that Padilla (who also took up arms on behalf of al Qaeda in Afghanistan) was captured in the U.S., where al Qaeda had sent him to unleash terror. The court of appeals panel is correct that Padilla’s place of capture is irrelevant under Hamdi because the rationale in that case (that Hamdi is an enemy combatant whose detention has been deemed necessary to prevent his return to the battlefield) applies equally to such enemy combatants when they are captured in the U.S.
Whether the plurality opinion in Hamdi was correct poses a closer question (recall that Justice Scalia disagreed with that opinion), but one that I can’t tackle tonight. In any event, the correctness of the Supreme Court’s Hamdi decision was not a question for the court of appeals to decide.

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