The Finch Formerly Known As Gold

1 March 2005

You gotta know when to hold 'em

And, conversely, when to let them go. In the case of José Padilla, [link requires Adobe Reader] the Bush Administration was given a sharp reminder of the latter by the US District Court for South Carolina.

"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.

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.

The Court ordered the government to charge Padilla, to name him as a material witness in an actual case, or to release him, within forty-five days.

(From SCOTUSblog via New World Man.)

Posted at 10:27 AM to Political Science Fiction


You mean the Administration should base its actions on facts and evidence? This could be a terrible blow to the Bush strategy of spreading freedom and democracy around the world.

Posted by: MikeH at 2:12 PM on 1 March 2005

I saw this as more of a fish-or-cut-bait statement; if Padilla is the threat the Administration has alleged, they should be prepared to try him. As I understand the situation, they theoretically could try him in a military tribunal — I'm not quite sure whether Ex parte Quirin applies here — which would minimize the risks of disclosing intelligence assets, but try him, one way or another, they must.

Posted by: CGHill at 2:22 PM on 1 March 2005