09 Sep Padilla is Back in Court – And Loses One More Time
09.09.05
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The Fourth Circuit’s new opinion on Jose Padilla’s challenge to his detention as an unlawful enemy combatant is here (thanks to Curtis Bradley for the heads up). The holding, by Judge Luttig (an oft-floated name for the Supreme Court) is:
We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the
United States of September 11, 2001.
I’ll blog more about this later. Must run to class!
A side-note to this case, I think, was John Yoo’s argument about the President’s inherent authority. The appeals court didn’t pronounce on this; it avoided this crucial question in a footnote: “[T]he 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.”
Isn’t the importance of this omission that it decreases the likelihood the Supreme Court will hear the case because it was decided on the narrowest possible grounds?
The Supreme Court decision in Hamdi is having very little practical impact in terms of hindering the Bush administration’s Guantanamo policy.