Detention Deficit

The president's lawless treatment of suspected terrorists

During the Korean War, the U.S. Supreme Court rebuked President Truman for trying to seize control of the nation's steel mills. Although Truman argued that an impending nationwide strike by steelworkers threatened the war effort, the Court insisted that he needed congressional authorization.

"The executive action we have here originates in the will of the President and represents an exercise of authority without law," wrote Justice Robert Jackson in his concurring opinion. "No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

If the president cannot use national security to justify the unilateral seizure of U.S. steel, how can he use it to justify the unilateral seizure of U.S. citizens? That is one of the important questions raised by a friend-of-the-court brief challenging the president's authority to detain indefinitely anyone he designates as an "enemy combatant" without charge, without counsel, and without legal recourse.

The brief was filed this week by the Cato Institute and five other public policy organizations in the case of Jose Padilla, who was detained in Chicago last year as a material witness and later transferred to military custody, where he has been held incommunicado for more than a year. The government says Padilla had contacts with Al Qaeda leaders and was "in the initial planning stages" of a plot to explode a radioactive bomb, but he has not been charged with a crime.

In December, U.S. District Judge Michael Mukasey ruled that Padilla has a right to contest his designation as an enemy combatant and that he should have access to a lawyer. The Justice Department has asked the U.S. Court of Appeals for the 2nd Circuit to overturn Mukasey's decision.

The detention authority claimed by the Bush administration is completely unconstrained by the rule of law. As Cato's brief notes, "The Executive's novel argument would allow it to exile anyone from the protection of our Constitution and our laws simply through the artifice of labeling him—without any visible standards—as an 'enemy combatant.'"

Cato argues that such a maneuver violates a federal statute that says, "No citizen shall be…detained by the United States except pursuant to an Act of Congress." Neither the Authorization for the Use of Military Force that Congress passed after 9/11 nor the anti-terrorism law known as the PATRIOT Act gives the president the detention powers he is trying to exercise.

The requirement that the executive branch detain people only as authorized by Congress is grounded in the Constitution as well as in statute. The separation of powers means the president is supposed to enforce the law, not write it.

The Constitution specifically gives Congress, not the president, the authority to suspend the privilege of the writ of habeas corpus, which allows citizens to challenge their detention. Even Congress may suspend that privilege only when public safety requires it because of rebellion or invasion.

The Fifth Amendment says no person may be deprived of liberty "without due process of law." Cato notes that "the Supreme Court has repeatedly made clear that due process of law requires legislative authorization for deprivations of liberty even during national security crises."

It might seem that the president's power grab, while alarming in principle, has not had much impact in practice, since so far only two citizens (that we know of) have been detained as enemy combatants. Yet the possibility of receiving that designation may already have made it impossible for anyone accused of terrorism to get a fair trial.

The government says the "Lackawanna Six," a group of young men arrested in upstate New York last fall, constituted an Al Qaeda "sleeper cell." But the details reported in the press suggest they were half-hearted wannabes rather than committed jihadists. Although they went through training in Afghanistan in the spring of 2001, they never hurt anyone and apparently did not plan to do so.

That does not make them innocent, but it suggests they did not deserve the sentences they received, which ranged from six-and-a-half to nine years. They decided that pleading guilty was preferable to risking indefinite confinement as enemy combatants. As one attorney told The Washington Post, "The defendants believed that if they didn't plead guilty, they'd end up in a black hole forever."

That sort of threat, which has no legal or constitutional basis, makes a mockery of justice.