WSJ: No Way, José - a ruling for the 9/11 anniversary re: detainees (Padilla)

Wall Street Journal ^ | September 13, 2005 | Editorial

[OESY]

...[A] panel for the Fourth Circuit Court of Appeals ruled unanimously last Friday that the President "unquestionably" has the power to detain an American citizen who has taken up arms against his country.

But wait. Didn't the Supreme Court say precisely that in its Hamdi decision last year? So it did, as Judge Michael Luttig notes repeatedly in his 25-page opinion penned for the court. That wasn't enough for José Padilla's attorneys, who argued that Hamdi, which concerned an American picked up on a battlefield in Afghanistan, didn't apply to their client, who was arrested domestically, at O'Hare Airport.

Padilla, for readers who may have forgotten, is the Brooklyn-born former gang leader who was recruited by al Qaeda, trained in Afghanistan, and equipped, funded and dispatched back to America. The "battlefield" in this case was to be American apartment buildings, which Padilla is accused of plotting to blow up. President Bush designated him an enemy combatant in 2002. The "locus of capture" is "irrelevant," Judge Luttig writes. Common sense says that Padilla poses the same threat of returning to the battlefield whether he was captured at home or abroad.

In previous wars, Americans who conspired to kill their fellow citizens were subject to trial by military commission, an option the President expressly ruled out in his post-9/11 order limiting military tribunals to non-citizens. Padilla's supporters want him to be charged in the criminal justice system or released. They include the American Civil Liberties Union, the People for the American Way Foundation, and former Clinton Justice officials Janet Reno, Eric Holder and Philip Heymann, who all want a return to the days of treating terrorism like a law-enforcement problem. In the week of the 9/11 anniversary, we're glad the Fourth Circuit didn't authorize a return to this September 10 mindset.