Court Orders Transfer to Civilian Authorities for Padilla

Thus, we do not concern ourselves with the Executive’s inherent wartime power, generally, to detain enemy combatants on the battlefield. Rather, we are called on to decide whether the Constitution gives the President the power to detain an American citizen seized in this country until the war with al Qaeda ends.

Interesting to note that the Court does not suggest it is necessarily illegal or unconstitutional for Padilla to be detained as he has been, but only that the President alone does not have the power to do so. The majority relies heavily on Youngstown and places heavy emphasis on Congressional supremacy in the domestic sphere

The Constitution’s explicit grant of the powers authorized in the Offenses Clause, the Suspension Clause, and the Third Amendment, to Congress is a powerful indication that, absent express congressional authorization, the President’s Commander-in-Chief powers do not support Padilla’s confinement.

It is on these grounds that the court distinguishes Ex parte Quirin, the WWII case in which German belligerents (including an American citizen) were captured in America and the Supreme Court denied their petition for habeas corpus relief. In that case, the court held that “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.”

The 2nd Circuit distinguishes that case from Padilla's:

First, and most importantly, the Quirin Court’s decision to uphold military jurisdiction rested on express congressional authorization of the use of military tribunals to try combatants who violated the laws of war. Specifically, the Court found it “unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation.”

And they distinguish The Prize Cases, which upheld the President’s authority to impose a blockade on the Confederacy withou a declaration of war:

First, The Prize Cases dealt with the capture of enemy property – not the detention of persons. The Court had no occasion to address the strong constitutional arguments against deprivations of personal liberty, or the question of whether the President could infringe upon individual liberty rights through the exercise of his wartime powers outside a zone of combat.

Second, the dissent would have us read The Prize Cases as resolving any question as to whether the President may detain Padilla as an enemy combatant without congressional authorization. The Court did not, however, rest its decision upholding the exercise of the President’s military authority solely on his constitutional powers without regard to congressional authorization.

The majority also distinguishes the recent 4th Circuit rulings in Hamdi:

The government’s argument for the legality of Padilla’s detention also relies heavily on the Fourth Circuit’s decisions in Hamdi II and Hamdi III. These decisions are inapposite. The Fourth Circuit directly predicated its holdings on the undisputed fact that Hamdi was captured in a zone of active combat in Afghanistan.

After deciding that the President did not have inherent constitutional power to detain Padilla, the majority looks to see if there has been congressional authorization for the detention. It holds that The Non-Detention Act (“No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”) applies to domestic military detentions of US citizens like Padilla, and thus there must be specific authorization. Of particular note is the court's rejection of the post-9/11 joint resolution as granting this power to detain:

We disagree with the assumption that the authority to use military force against these organizations includes the authority to detain American citizens seized on American soil and not actively engaged in combat.

The majority relies heavily on the WWII case Ex parte Endo (ordering the release of a Japanese-American who the government condeded was loyal) and its standard for interpreting the application of war-time measures on domestic soil when civil liberties are at stake:

“We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.”

The plain language of the Joint Resolution contains nothing authorizing the detention of American citizens captured on United States soil, much less the express authorization required by section 4001(a) and the “clear,” “unmistakable” language required by Endo.

The majority also refuses to find authorization in 10 U.S.C. § 956(5) (which was cited favorably by the 4th Circuit in Hamdi), holding that it merely authorizes the expenditure of money, and does not approach the "clear" and "unmistakable" standard of Endo

The dissent disagrees about both the President's inherent Article II powers and the question of Congressional authorization:

In my view, the President, as Commander in Chief, has inherent authority to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens, and, in this case, Congress through the Joint Resolution specifically and directly authorized the President to take the actions herein contested.

All in all a fascinating decision. It'll be interesting to see whether the Supreme Court takes it on appeal, particularly considering their recent cert grant on the Gitmo cases. It is pretty rare to see a court overrule executive action in foreign relations, but this narrow holding suggests that it was the overtly domestic nature of the case which invoked the close scrutiny of the Article II powers and the use of the Endo standard of interpretation.

As such, it is unlikely the ruling here will be of any help to Hamdi or the Gitmo prisoners. First of all, it is much easier to find inherent authority for those actions in the President's Article II war-making powers. Second, the high Endo standard of interpretation is not applicable to foreigners detained in combat zones abroad. Thus it is much easier for a court (like the 4th Circuit) to find an implied authorization for the detentions in either the post-9/11 Joint Resolution or 10 U.S.C. § 956(5). The 2nd Circuit has made a narrow ruling that will only apply to a narrow range of enemy combatants (Padilla might be the only one) who are American citizens detained in America. It is possible that another court might use the logic of this case and apply it more broadly, but that would go against decades of deference to the political branches (and the executive in particular) in the foreign relations area.