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September 09, 2005



I read the Fourth Circuit's opinion yesterday. I think I started feeling like I had wandered through the looking-glass at the top of the second page, when the opinion baldly asserted that we were "at war with al Qaeda."

"How the fuck does one declare war on an amorphous group of individuals?" I found myself asking. That question was never answered in the remaining 23 pages of the opinion, but those 23 pages that followed were all predicated on the assumption that one could, and that Bush had done so. The court also never answered the obvious question of whether the AUMF counted as a declaration of war within the meaning of the applicable clause of the Constitution, which would also seem to be a point of controversy.


From the way I read it, and I haven't finished the decision yet (and I'm not a lawyer either, so I'm at a bit of a handicap), Luttig's argument is that since SCOTUS upheld the administration's case in Hamdi, they had said that the AUMF was a sort of declaration of war by Congress, I guess because of that "necessary and appropriate" clause.

Now, I certainly disagree with the outcome of this case, but I am starting to wonder if there's as much blame to go to Congress for this snafu, because they wrote a bad law that the administration has used to their benefit. Of course, I don't know how SCOTUS came up with their decision on Hamdi, either, and if they'd found in favor of the constitution in that one, this one would have been more of a stretch for Luttig.


My quick scan (and I'm not a lawyer either, but I read a lot of law stuff) showed the court was arguing that Padilla's claim of difference wasn't good enough. His lawyers argued that unlike Hamdi, who was actually captured on a "battlefield" on foreign soil (and therefore legitimately held in military custody), he had been apprehended by civilian agents on U.S. soil. Since he was arrested under cover of a material witness warrant, he has no procedural grounds to appeal that arrest--it passes the "due process of law" test.

The Fourth Circuit found no merit in Padilla's claim. They said that there was no way Congress intended to limit the applicability of the AUMF to persons captured in actual battle. They also argued that even if military detention wasn't specifically mentioned in the declaration, it wasn't a sufficiently big stretch, so that was legal, too. The rest of the opinion was a lot of fancy law-chopping and hair-splitting to distinguish Padilla's case from the precedents he was claiming made his continuing detention without charge unconstitutional.

I should think, however, that the detention was ipso facto unconstitutional, since according to the Fourth Circuit, the purpose of military detention is to keep effectives out of combat. All well and good in the context of a traditional war, which comes to an end at some point and all the detainees go home again. But how on earth does one win (or even end) a war on an idea? Putting Padilla in military custody is tantamount to locking him up for life without possibility of parole, without his ever being formally charged--much less convicted--of a crime. That's the key distinguishing point I think they missed. Nor do I have much hope that SCOTUS will catch it, should the case proceed up the judicial ladder.


I should think, however, that the detention was ipso facto unconstitutional, since according to the Fourth Circuit, the purpose of military detention is to keep effectives out of combat. All well and good in the context of a traditional war, which comes to an end at some point and all the detainees go home again.

See, that's my problem here as well, along with the fact that Congress has a long history of demurring when it comes to their constitutional responsibility to declare war. I was amazed to learn that the US has apparently only declared was 5 times in its history--I knew that WWII was the last time, but that total number threw me.

Anyway, the real problem so far as I can tell is the question of who determines what "necessary and appropriate action" is in this so-called war? Congress left it vague, and since they gave that vague permission to the executive, the assumption by the court seems to be that they'll give great deference to the executive to determine what is necessary and appropriate, even if it seems like a severe 4th Amendment violation.


The Hamdi case, as I remember it, and I could be remembering wrong, had three different opinions. If memory serves, the majority opinion was joined by Rehnquist, Breyer, Ginsburg, Souter, Kennedy, and O'Connor. Thomas dissented, and Stevens and Scalia wrote a concurring opinion.

I remember agreeing with the crucial aspect of Scalia's opinion, which was that the Constitution requires Congress to suspend habeas corpus in order for the government to detain a citizen. Article I, the section dealing with the legislative branch say:

Section 9, Clause 2: 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.

Clearly Congress has not suspended the writ of habeas corpus. And Article II doesn't say anything about the writ of habeas corpus, so the framers clearly intended the president to have no say in it.

I also agree with Michael's basic point about the whole war thing:

All well and good in the context of a traditional war, which comes to an end at some point and all the detainees go home again. But how on earth does one win (or even end) a war on an idea?

I think this really highlights a major problem with the administration's careless use of language. The world "war" is there, presumably, as a propaganda tool. I suppose Congress could have issued a declaration of war on al Qaeda, which would have been weird, but the president has always talked about a "global war on terror" and it has always seems to me that that phrase is just incoherent from a legal standpoint. By pretending that it's a war in some sort of legally binding sense, really what they're saying is that a war is whatever the president says it is.

I really have no idea how it is that the 4th Circuit could call the AUMF a declaration of war. Congress knows how to declare war. It says things like this:

Declaring that a state of war exists between the Government of Germany and the government and the people of the United States and making provision to prosecute the same.

Whereas the Government of Germany has formally declared war against the government and the people of the United States of America:

That's from the appropriately named "Congressional Declaration of War on Germany" in 1941.

It seems to me, actually that the AUMF doesn't pretend like it's a declaration of war. The AUMF says:

(1) SPECIFIC STATUTORY AUTHORIZATION.—Consistent withsection 8(a)(1) of the War Powers Resolution, the Congressdeclares that this section is intended to constitute specific statu-tory authorization within the meaning of section 5(b) of theWar Powers Resolution.(2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing inthis joint resolution supersedes any requirement of the WarPowers Resolution

The section, 5(b) that the AUMF refers to from the War Powers Resolution says this:

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.

Presumably the AUMF counts as either #1 ("has enacated a specific authorization for such use") or #2 ("has extended by law such sixty-day period"). All of which is to say that Congress can authorize the use of military force WITHOUT declaring war, which is clear what it has done.

So for the 4th Circuit to pretend that the AUMF is a declaration of war is just not what the statute says. There is a clear distinction in the statute as to what a declaration of war is and what "enact[ing] a specific authorization" is.


I think we're all just beating around the bush here, pardon the pun. What really happened was that the 4th Circuit Court of Appeals wanted to reverse the lower court's findings and they found a way to do it that they figured wasn't so egregious that SCOTUS would overturn it. And thanks to a sloppy Congress that regularly abdicates its responsibility when it comes to declarations of war, they have something of a loophole--it's a candid-camera-look-at-the-law-upside-down-between-your-legs loophole, but it's a loophole all the same. And we're screwed as a result of it.

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