Posted by Orin Kerr:
District Court Rules Padilla Must be Set Free:
While a trial level opinion in this area merely sets the ball rolling
for future appellate proceedings, it is worth noting that today a
Bush-appointed District Judge in South Carolina ruled that the
Executive Branch has no power to detain Jose Padilla, the alleged
dirty bomber whose case previously went up to the Supreme Court. The
opinion is available [1]here. The Supreme Court ruled last summer that
Padilla's habeas action had been filed in the wrong district; this
habeas case was filed days after the Supeme Court decision in the
right district. The opinion was authored by [2]Judge Henry Floyd, who
was nomninated by George W. Bush. Judge Flloyd held that there was
simply no authority for the Executive Branch to hold Padilla:
[T]the Court is of the firm opinion that it must reject the
position posited by [the Government that it has inherent power to
detain enemy combatants]. To do otherwise would not only offend the
rule of law and violate this country's constitutional tradition,
but it would also be a betrayal of this Nation's
commitment to the separation of powers that safeguards our
democratic values and individual liberties.
For the Court to find for Respondent would also be to engage in
judicial activism. This Court sits to interpret the law as it is
and not as the Court might wish it to be.
According to Judge Floyd, the government had to handle this as a
criminal matter:
Simply stated, this is a law enforcement matter, not a military
matter. The civilian authorities captured Petitioner just as they
should have. At the time that Petitioner was arrested pursuant to
the material arrest warrant, any alleged terrorist plans that he
harbored were thwarted. From then on, he was available to be
questioned -and was indeed questioned - just like any other citizen
accused of criminal conduct. This is as it should be.
He added:
"The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it." Const. Art. 1, � 9, cl. 2. This power belongs solely
to Congress. Since Congress has not acted to suspend the writ, and
neither the President nor this Court have the ability to do so, in
light of the findings above, Petitioner must be released.
He concluded:
If the law in its current state is found by the President to be
insufficient to protect this country from terrorist plots, such as
the one alleged here, then the President should prevail upon
Congress to remedy the problem. For instance, if the Government's
purpose in detaining Petitioner as an enemy combatant is to prevent
him from "returning to the field of battle and taking up arms once
again[,]" Hamdi, 124 S.Ct at 2640, but the President thinks that
the laws do not provide the necessary and appropriate measures to
provide for that goal, then the President should approach Congress
and request that it make proper modifications to the law. As
Congress has already demonstrated, it stands ready to carefully
consider, and often accomodate, such significant requests.
Thanks to [3]Howard for the link.
References
1. http://www.scd.uscourts.gov/Padilla/Images/00000048.pdf
2. http://www.usdoj.gov/olp/floydresume.htm
3.
http://www.legalaffairs.org/howappealing/2005_02_01_appellateblog_archive.html#110962746104749314
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