The courts chime in…

Two pillars of our defense in the war are the president’s authority to detain enemy combatants and the law enforcement tools provided by the PATRIOT Act. That seems to explain why so many left-wing organizations are so hostile to both; they support the other side.
Yesterday’s two court decisions raise different issues regarding the detention of enemy combatants, and good commentary on them is available at the Volokh Conspiracy and at Howard Bashman’s How Appealing.
While the Volokh site posts the conspirators’ own learned commentary on such decisions, Bashman exhaustively collects relevant links to the decisions as well as reportage and commentary on them.
The Ninth Circuit decision yesterday holds that the Gitmo detainees have a right to access U.S. courts. The Justice Department’s comment on the decision is succinct and accurate: “Our position that U.S. courts have no jurisdiction over non-U.S. citizens being held in military control abroad is based on long-standing Supreme Court precedent. This position has been upheld unanimously by the D.C. Circuit Court of Appeals with respect to the detainees in military control at Guantanamo Bay. The Supreme Court is reviewing the issue.”
The Second Circuit decision involving Jose Padilla — an American who was apprehended in the United States and detained as an enemy combatant — is premised in part on the finding that the United States is not a “zone of combat.” In its lead editorial today the Journal suggests the judges stroll a few blocks from its Manhattan courthouse to take a look at the big hole at Ground Zero.
UPDATE: The Ninth Circuit decision is in my view a sideshow. The Second Circuit’s Padilla decision, however, is worth a look and can be accessed in PDF by clicking here. Professor Volokh’s comment on the decision can be accessed by clicking here. The Second Circuit panel majority holds: “Here, we find that the president lacks inherent authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat.”


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