By Joanne Mariner
Wednesday, Mar. 02, 2005
As shaped by men like Defense Secretary Donald Rumsfeld and justified by some (now notoriously) inventive lawyers, the Bush Administration's approach to fighting terrorism can be summarized in a phrase: the president's inherent power. A series of legal memoranda drafted by government counsel argue that the president possesses inherent authority to have people detained without charge, interrogated mercilessly, and kept in a legal limbo for unlimited lengths of time.
But while these lawyers focus on the Constitution's grant of power to the president as Commander in Chief, they ignore constitutional principles like the separation of powers and the concept of individual rights. They also disregard an entire body of statutory law that sets limits on the government's power to detain, question, and prosecute people suspected of wrongdoing.
In an important decision issued Monday in the case of so-called enemy combatant José Padilla, a U.S. district court judge in South Carolina rejected the government's approach. His ruling, rather than deferring to the government's broad claims, directs the reader's attention to the letter of the law.
In a relatively succinct opinion, Judge Henry F. Floyd touches on separation of powers principles, the difference between battlefields and civilian settings, and - in a couple of brief but compelling references -- underlying civil liberties concerns. But the linchpin of his ruling is the Non-Detention Act, a federal statute passed in 1971.
"No citizen," that law provides, "shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."
…
Preventive detention is a bad idea, inconsistent with constitutional principles. But the Bush Administration, in detaining Padilla and others, has made a bad idea much worse. Its form of preventive detention was never subject to congressional debate, has no temporal limits, and is unconstrained by due process protections.
It is raw power, pure and simple, and it is being exercised on a human being. The court was right to stop it.
Joanne Mariner is a human rights attorney. Her previous columns on thePadilla case, the other detainee cases, and the "war on terrorism" are available in FindLaw's archive.
Something to remember: Whatever we allow the government to do to someone else, we have given permission for it to do the same to us.
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