Emergencies, constitutions, Milligan and Padilla

[Marty Lederman]

Good timing, Sandy and Gordon.  You may have already heard that the Fourth Circuit (per Luttig and two Clinton appointees) today affirmed the Padilla detention as being authorized by the AUMF:  http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf.  A full account from Lyle Denniston here:  http://www.scotusblog.com/movabletype/archives/2005/09/padilla_detenti.html.

Although I find it very difficult to believe that Congress actually "intended," through the AUMF, to authorize the indefinite detention of American citizens captured in the U.S. under cicumstances similar to those in the Padilla case, I must concede that it's very difficult to figure out how to challenge Luttig's logic about how that conclusion follows from Hamdi (and from Quirin, to the extent one thinks that case should have any precedential value), especially in light of this "fact," on which Luttig places great emphasis:

The Government's explanation of why Padilla was a covered person have been a constantly moving target.  Most recently, however, the Administration alleges that Padilla fought on the actual battlefield in Afghanistan and that his detention at O'Hare therefore is an appropriate means of keeping him from returning to Afghanistan to fight.  This strikes me as extremely counterfactual, but it looks as though that's the story the Administration is now pressing.

So, what about Milligan?  The panel's last, most difficult, task is to distinguish Milligan.  Here's what Luttig writes:

Finally, Padilla argues that, even if his detention is authorized by the AUMF, it is unlawful under Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). In Milligan, the Supreme Court held that a United States citizen associated with an anti-Union secret society but unaffiliated with the Confederate army could not be tried by a military tribunal while access to civilian courts was open and unobstructed. Id. at 6-7, 121. Milligan purported to restrict the power of Congress as well as the power of the President. Id. at 121-22 ("[N]o usage of war could sanction a military trial . . . for any offence whatever of a citizen in civil life, in nowise connected with the military service.  Congress could grant no such power . . .").  Quirin, however, confirmed that Milligan does not extend to enemy combatants. As the Court in Quirin explained, the Milligan Court's reasoning had "particular reference to the facts before it," namely, that Milligan was not "a part of or associated with the armed forces of the enemy." See 317 U.S. at 45. The Hamdi plurality in turn reaffirmed this limitation on the reach of Milligan, emphasizing that Quirin, a unanimous opinion, "both postdates and clarifies Milligan." 124 S. Ct. at 2643. Thus confined, Milligan is inapposite here because Padilla, unlike Milligan, associated with, and has taken up arms against the forces of the United States on behalf of, an enemy of the United States.

So, here's the distinction:  Both Padilla and Milligan allegedly took up arms against the U.S.  But whereas Padilla -- not a member of Al Qaeda -- was "associated with" Al Qaeda, Milligan was "unaffiliated with the Confederate army," but was merely "associated with an anti-Union secret society."

It is, of course, preposterous to think that Milligan actually turned on the crucial fact that his affliations were with a secret society rather than the Confederate army.  But, per Quirin, as construed in Hamdi, as construed in today's Padilla decision, that's apparently what is left of Milligan. 


----- Original Message ----- 
From: "Sanford Levinson" <SLevinson at law.utexas.edu>
To: "Gordon Silverstein" <gsilver at berkeley.edu>; <CONLAWPROF at lists.ucla.edu>
Sent: Friday, September 09, 2005 10:17 AM
Subject: RE: Another question related to emergencies and constitutions


I would be interested in knowing how often Ex Parte Milligan has in fact
served to defend defendants' rights during times of war.  The US Supreme
Court certainly didn't seem to pay it much heed last year in Hamdi, for
example.  It is probably true that we're better off with Milligan on the
books than not, but it is still unclear to me (probably because I
haven't done the research--has anybody?) on the actual impact of
Milligan.

sandy 
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