By Crispin Sartwell
The history of American
constitutional interpretation boasts few moments that are more dangerous - and
none that is more ludicrous - than J. Michael Luttig's September 9 decision in
Padilla v. Hanft.
Jose Padilla, you may recall, is an American citizen
who was arrested as an al Qaeda operative when he re-entered the country on May
8, 2002. Ever since, he has been held in military detention as an "enemy
combatant," and denied all the rights guaranteed by the Constitution, most
obviously due process. He has never had the opportunity to challenge the
accusations against him.
The Bush administration asserted its right to
detain Padilla indefinitely, without charge or representation. It had this
authority, it claimed, under the congressional resolution passed after 9.11
authorizing the administration to "use all necessary and appropriate
force" in the war on terror.
Judge Luttig, writing, sadly, for a unanimous 4th U.S. Circuit Court of Appeals, upheld Padilla's detention without qualification,
overturning a district court that had ruled it unconstitutional.
The district court was right, on many grounds.
Luttig is often mentioned as a possible Supreme Court nominee, but people who
have any enthusiasm for their own most basic liberties must oppose him.
The purpose of the right of habeas corpus -
which is among the most basic freedoms enumerated in the Constitution - is to
keep the federal government from doing what it is doing to Padilla: holding him
without charge or trial. Without this right, we are all subject to arbitrary,
The Constitution makes specific provisions for
suspending habeas corpus in an emergency. But Congress did not suspend habeas
corpus in its resolution, and the courts cannot suspend it. The "necessary
and appropriate force" provision makes no mention of enemy combatants or
of suspending any of the rights of American citizens.
memo, signed by the president, which declared Padilla an enemy combatant, he is
flatly charged with treason: "Mr. Padilla engaged in conduct that
constituted hostile and war-like acts...that had the aim to cause injury to or
adverse effects on the United States."
Treason is the only crime
for the trial of which the Constitution provides specific procedures:
"Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and Comfort. No
Person shall be convicted of Treason unless on the Testimony of two Witnesses
to the same overt Act, or on Confession in open Court."
Given that Padilla has been
imprisoned for over three years, with no end in sight, we might say that he has
been convicted of treason aconstitutionally, without any semblance of due
Thus, Luttig's decision
usurps the authority of Congress by suspending habeas corpus unilaterally, and
abandons the authority of the judiciary by granting the executive branch a
limitless judicial power for the length of an interminable war. Luttig, in
short, makes a hash of the separation of powers, then eats it with evident
For precedent, Luttig's
opinion relies most heavily on the majority opinion in Hamdi v. Rumsfeld ,
written by Sandra Day O'Connor. Yasser Hamdi, like Jose Padilla, is an American
citizen who has been detained for years as an enemy combatant. Indeed, Luttig writes that "we can
discern no difference in principle between Hamdi and Padilla."
But in the Hamdi decision,
O'Connor wrote that the president's war powers and Hamdi's due process rights
were both extremely important considerations. She acknowledged that what Yasser
Hamdi had at stake was "the most elemental of liberty intereststhe
interest in being free from physical detention by oneıs own government."
"We therefore hold," she concluded, "that a citizen-detainee
seeking to challenge his classification as an enemy combatant must receive
notice of the factual basis for his classification, and a fair opportunity to
rebut the Governmentıs factual assertions before a neutral decisionmaker."
But unlike O'Connor's
opinion, Luttig's contains no acknowledgment whatever that American citizens
have any due process rights of any kind that can be enforced against the
Luttig's suspension of the
constitution hints that it is legitimate for the executive branch to hold
anyone it pleases, secretly, without charge, for as long as it likes, on any
grounds at all or on no grounds whatever. If the decision stands, we will never
know how many people are thus detained, or where, or why.
This is the very essence of
arbitrary, tyrannical power as it was understood by the framers of the
Constitution. The notion that Luttig might replace O'Connor - precisely,
perhaps, as a reward for his colossal suspensions of liberty and rationality in
the service of unchecked presidential power - is outrageous.