Among the outrages in Attorney General Holder’s letter to Senator McConnell is his selective memory when it comes to military detention of terrorist suspects captured in the United States. Oddly, the only words highlighted for emphasis in the entire letter are in this sentence: “Since the September 11, 2001 attack, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States.” That emphasis is odd because, on the very next page, he explains that two “persons apprehended in recent times have been held under the law of war.” I guess by “without single exception” he meant that two is not one. Just as it is true that a hitter does not get credit for two singles when he hits a double, two exceptions are not “a single exception.”
But that’s not the most outrageous misrepresentation (or omission) when it comes to those cases. Holder explains that Jose Padilla and Ali Saleh Kahlah Al-Marri were both transferred to military custody after being apprehended in the United States and held initially in civilian custody. Holder explains the “lengthy litigation” that ensued: “In Mr. Padilla’s case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.” Ultimately, Mr. Holder says, Padilla was returned to law enforcement custody, convicted of terrorism charges and sentenced to prison.
Strangely, that is where Holder leaves it, suggesting that Jose Padilla was transferred to law enforcement custody because he couldn’t be held in military detention. Holder is correct that, in 2004, the Second Circuit did indeed hold that the President did not have authority to detain him. It did so not because the President lacks authority to indefinitely detain unlawful enemy combatants captured in the United States. It did so because Padilla, unlike Omar Abdulmuttallab, was a U.S. citizen. More importantly, Holder leaves out a bit of crucial information: The Second Circuit’s decision was vacated by the U.S. Supreme Court, which held that the Second Circuit had no jurisdiction to decide Padilla’s habeas corpus petition, since he was being held outside of that jurisdiction in a brig in South Carolina.
So Holder (apparently deliberately) misrepresents the ultimate holding in the Padilla case. But it gets even worse for Holder’s claims. After the Supreme Court vacated the Second Circuit ruling, Padilla’s case went to the proper court in South Carolina, which also held that Padilla could not be held in military detention. That ruling, too, was eventually thrown out. In Padilla v. Hanft, the U.S. Court of Appeals for the Fourth Circuit ultimately held that the President indeed had the authority to detain Padilla, by virtue of his own constitutional power and the Congressional delegation of authority under the Authorization of Use of Military Force Joint Resolution enacted by Congress in the days after September 11, 2001. Padilla was subsequently transferred to civilian criminal custody while Padilla’s petition for Supreme Court review of that decision was pending, and the Supreme Court eventually declined to hear the case.
Curiously, Holder does not mention any of this subsequent history, leaving his audience with the suggestion that there was some limitation imposed by the Padilla case on the power of the President to designate and detain under the laws of war an enemy combatant captured on U.S. soil. The truth is just the opposite. The Fourth Circuit affirmed the power of the President to detain Jose Padilla — a U.S. citizen detained on U.S. soil — “as a fundamental incident to the conduct of war.” While the Supreme Court never had a chance to hear the case, Holder grossly misrepresented its importance in citing a Second Circuit decision that had no legal value because it had been issued by a court that improperly asserted jurisdiction over the case in the first place.