Case of the Month: Padilla v. Hanft

On this last day of September I would nominate Padilla v. Hanft as the most important international law case of the month. The Fourth Circuit decision, per Judge Michael Luttig (on the short list for a Supreme Court nomination), is a great example of the potential impact that international law principles may have on statutory interpretation under the so-called Charming Betsy doctrine.

The case involved the prolonged detention as an enemy combatant of the alleged “dirty bomber” Padilla, an American citizen. Padilla fought in Afghanistan against the United States, but was captured while attempting to enter the United States allegedly to perform a terrorist act on our soil. As an enemy combatant he faces detention until hostilities cease, which in the war on terror is on a date uncertain. If charged and convicted he could well face the death penalty for his treasonous conduct. The Fourth Circuit relied principally on Hamdi v. Rumsfeld, 542 U.S. 507 (2004), which in turn relied on “longstanding law-of-war principles” in its interpretation of the congressional authorizing statute (the AUMF). The Supreme Court in Hamdi concluded that Hamdi’s detention was “necessary and appropriate” within the meaning of the congressional statute because “[t]he capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by universal agreement and practice, are important incident[s] of war.” Consistent with that decision, the Fourth Circuit interpreted the AUMF as authorizing “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.”

International law, consistent with Charming Betsy, was imported into the statute in Hamdi, and now the plurality in Hamdi controls Padilla. The statute implicitly authorized detentions of enemy combatants consistent with the laws of war, and the Executive branch, the Fourth Circuit held, is acting consistent with those obligations. No meaningful distinction was made between an American and non-American enemy combatant. Nor was there any meaningful distinction made between the conventional war at issue in Hamdi (the ongoing war in Afghanistan) and the unconventional war at issue in Padilla (the war on terror).

Although many international law academics may resist the decision, Hamdi and Padilla both represent a win for international law in an obvious way: the laws of war were clearly interpreted to circumscribe congressional authorization for executive action. Of course, precisely what the laws of war require in an unconventional war on terror is an exceedingly difficult question. But the Charming Betsy doctrine only mandates that we endeavor to interpret ambiguous statutes consistent with the “law of nations as understood in this country.”