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2005-2006 by Rodney G. Graves, all rights reserved. Padilla vs Hanft and the Customary Laws of WarOnce again the question before an appellate court was "Can the President detain an enemy combatant for the duration of hostilities?" The complicating factor in this case (JOSE PADILLA vs C. T. HANFT [Hanft is the Commander of the Consolidated Navy Brig, Charleston, SC) is that Padilla is a citizen of the United States of America. And again, as in Hamdi vs Rumsfeld (which is cited in the decision) the answer is YES. Far from being an innocent citizen on the street, Padilla was, and still is, a combatant engaged in operations against the United States of America. This is STIPULATED to by Padilla's legal team.Footnote 1, found on page -7- For purposes of Padilla's summary judgment motion, the parties have stipulated to the facts as set forth by the government. J.A. 30-31. It is only on these facts that we consider whether the President has the authority to detain Padilla.Padilla's legal team made no contest to the Presidential Finding that Padilla was an enemy combatant. We have already reviewed the applicable black letter law of the Customary Laws of War. From this body of law, a study of history, and recent court cases, we know that enemy combatants once captured may be (and usually are) held for the duration of hostilities. As Justice O'Connor (writing for the majority in Hamdam vs Rumsfeld and quoting Ex parte Quirin) stated: ...detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war.The panel (Judges Luttig, Michael, and Traxler) of the 4th Circuit goes on to further paraphrase and quote Ex parte Quirin: In Quirin, the Court held that Congress had authorized the military trial of Haupt, a United States Citizen who entered the country with orders from the Nazis to blow up domestic war facilities but was captured before he could execute those orders. Id at 20-21, 28, 46. The Court reasoned that Haupt's citizenship was no bar to his military trial as an unlawful enemy belligerent, concluding that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of . . . the law of war." Id. at 37-38 Like Haupt, Padilla associated with the military arm of the enemy, and with its aid, guidance, and direction entered this country bent on committing hostile acts on American soil. J.A. 22-23 Padilla thus falls within Quirin's definition of enemy belligerent, as well as within the definition of the equivalent term accepted by the plurality in Hamdi.The panel further states: We understand the plurality's reasoning in Hamdi to be that the AUMF [Authorization to Use Military Force, Joint Resolution of Congress under the War Powers Act] authorizes the President to detain all those who qualify as "enemy combatants" within the meaning of the laws of war, such power being universally accepted under the laws of war as necessary in order to prevent the return of combatants to the battlefield during conflict. Id at 2640-41. Given that Padilla qualifies as an enemy combatant under both the definition adopted by the Court in Quirin, and the definition of accepted by the controlling opinion in Hamdi, his military detention as an enemy combatant by the President is unquestionably authorized by the AUMF as a fundamental incident to the President's prosecution of the war against al Qaeda in Afghanistan.Note that while it is still possible for Padilla to challenge his status as an enemy combatant, the stipulation of his legal team to that status in this case will be examined by any subsequent court hearing such a challenge. Nor is this detention "indefinite." When the war ends, so too will Padilla's imprisonment as an enemy combatant. Nor has Padilla been removed from the criminal courts. Instead, such criminal trial is postponed until after the cessation of hostilities. There is, after all, no statute of limitations on treason. Out Here |