The Second Circuit shorts out

Ruth Wedgwood is a former federal prosecutor and current professor of international law and diplomacy at Johns Hopkins. Today’s New York Times carries her column “The rule of law and the war on terror.”
Wedgwood asks what the government is to do when it knows of catastrophic threats or dangers to Americans through intelligence sources, yet is unable to prove its case in a criminal trial against those planning such attacks. That is the case presented by Jose Padilla upon his reentry to the United States.
Wedgwood powerfully challenges the rationale of the Second Circuit decision holding that the president lacks authority to order the detention of Jose Padilla. Wedgwood lucidly explains the ground of the president’s authority and the insidious errors underlying the Second Circuit’s decision.
Wedgwood indicates a few of the reasons for believing that the Second Circuit decision is mistaken. She does not discuss what should be done if the decision is upheld, which is to have Congress provide the president specific statutory authority to detain enemy combatants found in the United States.
And she does not address the president’s constitutional authority to do so, with or without such an additional grant of authority by Congress. But measured against the usual stuff carried on the Times op-ed page, the piece is a beacon of rationality.


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