Judge slams White House in Padilla case

The Bush Administration's attempt to broaden (or, rather, narrow) the scope of the Constitution to permit the Executive the authority to arbitrarily detain US citizens without charge has been dealt a severe blow in the courts. The detention of dirty bomb suspect Jose Padilla, arrested in Chicago and held without charge for two and a half years, has been ruled unconstitutional by a South Carolina judge. Judge Henry Floyd's decision was squarely within the common sense tradition of American constitutional law.

US Attornery General Alberto Gonzales gave a tepid defense of the policy in testimony to Congress today, and intends to appeal the decision, but past court decisions--from the Supreme Court on down--have not bought the White House's expansive reading of a President's inherent war power authority.

This might be portrayed as a setback in the War on Terrorism, but that is nonsense. (E.g., Michelle Malkin. A vague resolution doesn't give a president authority to suspend express civil liberties, sorry. And the White House argument has been of the "inherent authority" variety, anyway.) Rather, it is a victory for the United States' vitality as a political order, exploding the idea that a President can unilaterally suspend the Bill of Rights for citizens. If Bush wanted a comprehensive legal regime in place to give him the ability to fight terrorism at home, he should have gotten appropriate legislation concerning American combatants passed in Congress years ago. Congress (not the President!) has the authority to suspend habeas corpus rights, in limited circumstances; and narrow, constrained legislation on this matter could have been pushed through the legislature by Bush long ago.

(Re: my suspicions of the Bush Administration's dubious doctrine of inherent, extra-legal war powers; it focuses in particular on the Bybee Memo.)

Judge Floyd, a Bush appointee, situated the case within long standing concepts of the separation of powers.

Articles have these quotes from Floyd:

• "The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant."
• "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."
• To rule in favor of the government "would not only offend the rule of law and violate this country's constitutional tradition," it would be a "betrayal of this nation's commitment to the separation of powers that safeguards our democratic values and individual liberties."
• "The real issue in this case is Mr. Padilla's right to have that jury," he said. "That's not just Mr. Padilla's right, that's every American citizen's right."

Update: Jeff Quinton has a link to the Floyd's case order as PDF file.

Update 2: No mention of the case in today's White House briefing.