The so-called “War on Terror” has raised many Constitutional issues, the most important among them centering around the right of the accused to be held indefinitely without knowledge of the charges being brought against him, or even access to legal counsel. In Rumsfeld v. Padilla, 542 U. S. 426 2004, the issue was brought into sharp focus when attorney Donna Newman filed a writ of habeus corpus, in a U. S. District Court in New York State on Padilla’s behalf, naming U. S. Secretary of Defense Donald Rumsfeld as defendant.
The case ultimately came before the SCOTUS, the primary issue being whether or not the Authorization for Use of Military Force (PL No. 107-243) allowed the President to arbitrarily declare any U. S. citizen to be an “enemy combatant” and detain such a person in a military facility indefinitely on that basis. Newman’s argument was that PL 107-243 was in conflict with and precluded by the Non-Detention Act of 1971, which addressed the excesses of the McCarthy Era. In its ruling, the SCOTUS sidestepped the issue completely, instead ruling that Newman had filed the case improperly.
The majority opinion stated that under Federal law, a petition for a writ of habeus corpus must be brought against the party who is legally authorized to bring the detainee before the court – in this case, the commander of the military facility in South Carolina to which Padilla had been relocated. In the dissenting opinion, four of the justices stated that an exception was called for in this case because the government had failed to notify Newman before moving her client.
The extraordinary powers claimed by the Presidency as well as granted by an overly-compliant and subservient Congress hastily in the wake of the attacks of 11 September 2001 was raised many Constitutional issues; these new and extraordinary powers have literally been undermining the Bill of Rights for the past seven years. In addition, the Non-Detention Act of 1971 is quite clear on the issue. The argument in favor of Rumsfeld might be based on the language of § 4001(a), which says: ON THE US SUPREME COURT AND THE PATRIOT ACT – 2
“No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress” (italics mine). In other words, does passage of PL No. 107-243 by Congress now make it permissible for the President to detain and imprison anyone he considers an “enemy combatant”? Article II, Section 2 of the U. S. Constitution is very specific on the powers granted to the Executive Branch; the authority to arrest and detain prisoners for any reason is not among them. It might be argued that PL No.
107-243 gives the President such powers, the Non-Detention Act of 1971 notwithstanding; however, this begs the question of whether Congress has the authority to literally change the Constitution without going through the Amendment process. There is a larger issue here however, going back almost 700 years, which is the rights of the accused. Habeus corpus, essentially nullified by passage of the Military Commissions Act of 2006, has been a tradition in Anglo-American law since 1215 in order to safeguard the rights of the accused from arbitrary actions by those in power.
The record of the past seven years, with numerous “signing statements” and other gross abuses by the Executive Branch as well as the overwhelming number of federal judicial appointments made solely on the basis of political loyalty as well as a compliant Congress that has failed miserably in its obligations to stand up to such abuses, clearly shows that the principle of habeus corpus is more necessary than ever, and that any interpretation of PL No.
107-243 must be biased toward the protection of individual rights rather than executive power. If indeed the passage of the War Powers Act and the Military Commission Act appear to nullify PL No. 107-243, one should turn to the the U. S. Constitution, which does not grant the president any such power and can only be changed through the amendment process. SOURCES USC Title 18 Part III Chapter 301 § 4001(a) US Constitution, Article II Section 2 Rumsfeld v. Padilla, 542 U. S. 426 2004