We wrote briefly about the Second Circuit’s decision involving the detention of Jose Padilla as an enemy combatant in “The courts chime in” and “The Second Circuit shorts out.” The Wall Street Journal recently ran a good column by former White House attorney Bradford Berenson that it has made available online this morning: “Earth to Second Circuit: We’re at war.”
Under settled constitutional law, the president wields plenary authority to detain enemy combatants during wartime. The president’s assertion of this power in the Padilla case is squarely within the mainstream of previous case law. The Second Circuit decision is based on its cramped reading of the post 9/11 Congressional authorization of the use of force and its view that “the president lacks inherent authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat.” Berenson’s column straddles the statutory and constitutional issues raised by the Second Circuit opinion, both of which the court gets ridiculously, Dean-donger wrong.
Berenson does a particularly good job of highlighting the court’s absurdity on the constitutional question: “Despite its protestations to the contrary, the Second Circuit must have doubted whether we are really at war. At a minimum, it seriously misunderstood the war’s essential character. The court repeatedly described American soil as distinct from a battlefield and said that Mr. Padilla was ‘outside a zone of combat’ and was not ‘actively engaged in armed conflict against the United States’ when he was apprehended in O’Hare airport. By that logic, neither were the 19 hijackers as they walked through Logan and Dulles Airports on the morning of Sept. 11, 2001. If 9/11 did not illustrate that nicely dressed al Qaeda in our airports are enemy fighters on the battlefields of this new war, what did it teach us?”
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill