Padilla v. Hafnt (Sept. 9, 2005)

Link.

Judge Luttig's opinion for the Fourth Circuit sticks pretty close to Justice O'Connor's plurality in Hamdi, although it leaves one question unanswered. There were six votes in Hamdi for the proposition that Hamdi was entitled to some due process, even if it was not a full-blown constitutional proceeding. (I mean here exactly what Justices Scalia and Stevens emphasized in their opinion: the Constitution says how the federal government may deprive citizens of freedom; if Congress and the president cooperate to establish some "new way," with the assistance of the reliable "Mr. Fix-Its" on the Supreme Court . . . that's not a constitutional proceeding.) I don't see anything about due process in the Padilla opinion.

That's probably because of the procedural posture of the case, but to be honest, I haven't been keeping up with this the way that I was last year.

Also, I think it's strange how judges are reading the "AUMF," the Authorization for Use of Military Force passed by Congress in the wake of the 9/11 attacks. They're reading it as though it says: "The president may do as he wills." But Congress used specific words, one of which was "appropriate," as in "[T]he President is authorized to use all necessary and
appropriate force" against terrorists and their allies. But isn't that like the elastic clause, which says Congress has the power to make all laws that are "necessary and proper" for the carrying out of its other powers? I mean, Congress can't suspend due process because it would be useful in collecting taxes, for example. So why can the president suspend due process in the war on terror?

BTW, I also find it incredible that judges sign off on this argument: The Government wants to prevent Padilla from rejoining al Qaeda, so they have to keep him out of the criminal justice system. Now, that may be the case now, because Lord knows how little un-tainted evidence the Government has to present at a trial (in the sense of evidence not obtained by the violation of Padilla's Fifth and Sixth Amendment rights). But do these lawyers at the DOJ and DOD know nothing about criminal law and sentencing in this country? There was a Sixth Circuit terrorism case back in pre-9/11 2001, Graham. Dumb rednecks playing militia; they planned to attack a National Guard armory and seize weapons. They were completely hapless; neer got close to carrying this out. And Graham gets . . . fifty-five years in the federal penitentiary, all told. There's a little something called the terrorism sentencing enhancement . . . plus, federal conspiracy law is pretty serious business.

So you can put Padilla away for a long time, even with a trial. And a jury is going to return a guilty verdict here, folks. OK? The dumbest DOJ lawyer could try this case and win.

That is all.