The U.S. Court of Appeals for the 4th Circuit today upheld the federal government's indefinite detention of suspected terrorist Jose Padilla without charge or trial. Overturning a federal judge's ruling that Padilla's detention was unlawful, the 4th Circuit concluded that it was permitted by the authorization of force that Congress approved in response to the September 11 attacks. Throughout its opinion, the court assumes all the facts are as the government alleges: that Padilla, a U.S. citizen, trained with Al Qaeda in Afghanistan, where he carried a weapon during the U.S. invasion; that he met with Qaeda bigwig Khalid Sheikh Mohammad in Pakistan; and that he returned to the U.S. with the intent of carrying out terrorist attacks. Those may indeed be the facts, but how do we know?
If, as the 4th Circuit seems to be saying, the president now has the unilateral, unreviewable authority to lock up anyone he deems an "enemy combatant" and throw away the key, what guarantee do we have against mistakes (or worse) by the executive branch? When this president or one of his successors locks up more Americans as intolerable threats to national security, based on nothing more than his own say-so, how can we be confident his judgment is both honest and accurate?
Here, by the way, is "the full text" of President Bush's memorandum declaring Padilla an enemy combatant, as presented in the 4th Circuit's opinion:
THE WHITE HOUSE
FOR OFFICIAL USE ONLY
TO THE SECRETARY OF DEFENSE:
Based on the information available to me from all sources,
In accordance with the Constitution and consistent with the laws of the United States, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40); I, GEORGE W. BUSH, as President of the United States and Commander in Chief of the U.S. armed forces, hereby DETERMINE for the United States of America that:
(1) Jose Padilla, who is under the control of the Department of Justice and who is a U.S. citizen, is, and at the time he entered the United States in May 2002 was, an enemy combatant;
(2) Mr. Padilla is closely associated with al Qaeda, an international terrorist organization with which the United States is at war;
(3) Mr. Padilla engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States;
(4) Mr. Padilla possesses intelligence, including intelligence about personnel and activities of al Qaeda, that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda on the United States or its armed forces, other governmental personnel, or citizens;
(5) Mr. Padilla represents a continuing, present and grave danger to the national security of the United States, and detention of Mr. Padilla is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens;
(6) it is in the interest of the United States that the Secretary of Defense detain Mr. Padilla as an enemy combatant; and
(7) it is REDACTED consistent with U.S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as enemy combatant.
Accordingly, you are directed to receive Mr. Padilla from the Department of Justice and to detain him as an enemy combatant.
DATE: June 9, 2002
If you're wondering why your neighbor, your cousin, or that Middle Eastern guy at work suddenly disappeared, it's because REDACTED.