The Unjust Detention of Jose Padilla

Jose Padilla, an American citizen arrested in Chicago in May 2002, has been held more than three years in a Navy brig without charge. The truth of the allegations against him - that he planned to commit acts of terrorism -- has never been tested in court.

Last week, the U.S. Court of Appeals for the Fourth Circuit upheld Padilla's detention, reversing a lower court decision that had said that Padilla should be either charged or released. Relying on the Supreme Court's 2004 ruling in Hamdi v. Rumsfeld -- a case involving Yaser Hamdi, an American citizen captured on the battlefield in Afghanistan -- the Fourth Circuit found that Congress had authorized Padilla's detention by passing a joint resolution on the use of military force in Afghanistan.

Much of the Fourth Circuit's opinion examines the relevance of the fact that Yaser Hamdi was captured in Afghanistan, in the midst of war, while Padilla was picked up in a civilian airport in Chicago. This difference, which the lower court found to be dispositive of the case, is dismissed by the Fourth Circuit as meaningless. Under a fair interpretation of the Supreme Court's plurality opinion in Hamdi, argues the Fourth Circuit, there is no room for a distinction based on the place of the detainee's capture.

But left unaddressed in the Fourth Circuit's opinion is another, far more crucial difference between Hamdi and Padilla. This issue, which the Fourth Circuit does not mention, let alone engage, was nonetheless discussed quite explicitly in the Supreme Court's plurality opinion in Hamdi.

Padilla, unlike Hamdi, is not alleged to be a Taliban, someone who under international law should be released at the end of the hostilities in Afghanistan. Rather, if the government's allegations are true, Padilla is "closely associated with al Qaeda" and made preparations for "acts of international terrorism."

Padilla is, in short, an alleged criminal, not a soldier. He is not being held as a consequence of the war in Afghanistan, but instead as part of the government's ill-defined and open-ended "war on terror." And if the government's terrorism allegations are true, he should be prosecuted, not released.

But, of course, the only way to ascertain the truth of the government's allegations is to subject them to a fair judicial proceeding - precisely what the Fourth Circuit has now said is unnecessary.

War on Terror, or War in Afghanistan?

In justifying its ruling, the Fourth Circuit cherry-picked the Supreme Court's plurality opinion in Hamdi for supportive language, ignoring the rest. The key point that the Fourth Circuit failed to address is the Supreme Court plurality's very clear differentiation between the war in Afghanistan and the "war on terror." And not only does the plurality distinguish the two, it also emphasizes that its ruling applies narrowly to the former, without encompassing the latter.

In the government's preferred view of things, the conflict in Afghanistan is part of a broader struggle: a global war on terror. The Supreme Court plurality, in upholding Hamdi's detention, acknowledges this view but does not endorse it. It recognizes that since Hamdi is, at most, a traditional combatant fighting a traditional war, the question of detaining suspected terrorists for the duration of a long-term, open-ended war on terror is not under review.

To underscore this position, the Supreme Court's plurality opinion pointedly characterizes the conflict in traditional terms. It notes that "active combat operations against Taliban fighters apparently are ongoing in Afghanistan." And it concludes that as long as the U.S. continues to fight this war, then the Pentagon may hold members of the Taliban as detained combatants.

But not only does the plurality opinion clearly not uphold the detention of a Padilla - that is, a person suspected of planning terrorism, not of fighting in a traditional war -- it even casts doubt on whether such a detention could be justified. It cautions, notably, that the underpinnings of the so-called war on terror are "broad and malleable." And while it concludes that Congress has authorized the detention of enemy combatants for the duration of the Afghanistan conflict, it adds that it might hesitate to find that Congress has done so for a conflict whose practical circumstances "are entirely unlike those of the conflicts that informed the development of the law of war."

Planning to Return to Battle, or Planning to Blow up Apartment Buildings?

Not a hint of the Supreme Court's complex reasoning is found in the Fourth Circuit's opinion. Indeed, the Fourth Circuit's failure to acknowledge the distinctions set out in the Court's plurality opinion is apparent from its very first line. In referring to the U.S. "war against al Qaeda," rather than the Afghanistan conflict, the Fourth Circuit leaves deliberate ambiguity as to whether the relevant conflict is the global "war on terror" or the limited conflict in Afghanistan.

In key points in the opinion, moreover, the Fourth Circuit resolves this opening ambiguity in favor of the broad war on terror, not the war in Afghanistan. It asserts, for example, that Padilla came to this country "for the purpose of blowing up apartment buildings, in continued prosecution of al Qaeda's war of terror against the United States." Referring to September 11th, the Fourth Circuit states, at the opinion's close, that the detention of enemies like Padilla protects the United States "from the very kind of savage attack that occurred four years ago almost to the day."

The disingenuousness of the Fourth Circuit's approach is evident when it gets into the nuts and bolts of justifying Padilla's detention. Reciting the allegations asserted by the U.S. government, it states that "[t]hese facts unquestionably establish that Padilla poses the requisite threat of return to battle in the ongoing armed conflict between the United States and al Qaeda in Afghanistan."

Here, to assimilate the case to the Hamdi case, the Fourth Circuit makes an explicit reference to the conflict in Afghanistan. But it also makes a glaringly obvious misstatement. As the Fourth Circuit is fully aware, Padilla's possible return to Afghanistan is unquestionably not the issue in this case.

The real issue is, as the Fourth Circuit makes clear elsewhere, whether Padilla would pose a threat to the United States from within the United States. It is whether Padilla is a terrorist associated with al Qaeda, not a combatant fighting for the cause of a Taliban-governed Afghanistan.

As the Fourth Circuit well knows, the existence of an armed conflict in Afghanistan is entirely irrelevant to the U.S. government's interest in detaining suspected terrorists at home. If the U.S. believes that Padilla is in league with al Qaeda, it will try to hold him regardless of future developments in Afghanistan. (In fact, most experts recognize that the international armed conflict in Afghanistan ended some time ago; what is left now is an internal armed conflict between the Afghanistan government -- aided by the U.S. -- and the Taliban insurgency.)

What Is at Stake

The Fourth Circuit's aggressive misreading of the Supreme Court's plurality opinion in Hamdi is not just wrong as a matter of law. It is, more importantly, wrong as a matter of principle.

Justice John Paul Stevens put the matter bluntly when he dissented from the Court's 2004 decision to dismiss the Padilla case on procedural grounds: "At stake in this case is nothing less than the essence of a free society."

As he explained: "Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber."