Padilla

[Pam Karlan]

At 11:27 AM 6/28/2004 -0400, Marty Lederman wrote:
>In Padilla, it appears that only four Justices reach (or even discuss) the 
>question of the lawfulness of the detention.  Stevens writes that "the 
>Non-Detention Act, 18 U. S. C. §4001(a), prohibits—and the Authorization 
>for Use of Military Force Joint Resolution, 115 Stat. 224, adopted on 
>September 18, 2001, does not authorize—the protracted, incommunicado 
>detention of American citizens arrested in the United States."  He continues:
>
>"At stake in this case is nothing less than the essence of a free society. 
>Even more important than the method of selecting the people’s rulers and 
>their successors is the character of the constraints imposed on the 
>Executive by the rule of law.  Unconstrained Executive detention for the 
>purpose of investigating and preventing subversive activity is the 
>hallmark of the Star Chamber.  Access to counsel for the purpose of 
>protecting the citizen from official mistakes and mistreatment is the 
>hallmark of due process. Executive detention of subversive citizens, like 
>detention of enemy soldiers to keep them off the battlefield, may 
>sometimes be justified to prevent persons from launching or becoming 
>missiles of destruction.  It may not, however, be justified by the naked 
>interest in using unlawful procedures to extract information. 
>Incommunicado detention for months on end is such a procedure. Whether the 
>information so procured is more or less reliable than that acquired by 
>more extreme forms of torture is of no consequence. For if this Nation is 
>to remain true to the ideals symbolized by its flag, it must not wield the 
>tools of tyrants even to resist an assault by the forces of tyranny."

Marty's right, of course, that Padilla goes off entirely on the 
jurisdictional questions whether Rumsfeld was the proper custodian and 
whether jurisdiction/venue was proper in the S.D.N.Y.  But take a look at 
Scalia's dissent (joined by Stevens) in Hamdi, which basically says that 
the Constitution gives two choices with respect to American citizens: 
charge the crime of treason or suspend the writ of habeas corpus 
(temporarily) and detain them, seeing no intermediate option.  See slip op. 
at 11.



Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
karlan at stanford.edu
650.725.4851
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