I see it as a decidedly unringable bell.

Congress authorized this war against those persons who harbored Al Qaeda, as Padilla is said to have done and was so ruled on in a habeas process. Congress can unauthorize that war. Or limit its scope to exclude those who it perceives are being wrongly dealth with as war enemies.

The judiciary can also unring the bell in each single case it is applied. The Hamdi habeas hearing is there as oversight against mistake or abuse in its application.

It is a bell that may be unrung by any branch of government for any perceived abuses.

That is a rash conclusion which underscores the vital stake of this debate.

For the President to select certain criminal grounds for prosecution which are not in conflict with his combat strategies in play, should in no way be read as stating all his known facts on a given subject, such as citizen-enemy combatant Padilla, who may, at the executive’s discretion, be prosecuted for a crime and/or fought in combat pursuant to a war authorization.

To force the executive to maintain prosecutorial soundness in dealing with every aspect of an enemy combatant’s conduct by adhering to stringent criminal procedure and rights requirements would be ruinous to a Commander in Chief’s ability to wage war.

You have to allow the Commander to decide when such factors as a “ticking bomb” or need for secrecy as to techniques or informants may require that the expediencies of combat or interrogation be used that forgo preserving prosecutorially sound processes such as reading Miranda rights.

Neither Pancho Villa nor the Barbary pirates were operating in places where the courts were functioning, the standard set after the Civil War, and unlike the WWII case, Congress had not provided for military tribunals, indeed, it had disavowed military treatment of Americans at home in the non-detention act.

Likewise, in Vietnam and Korea, there were civil wars underway by organizations seeking to be declared the legitimate regime. The Taliban did the same. Al-Queda doesn’t fit there.

Most legal scholars in 2000 would have argued that Quirin was an abberation in exceptional circumstances. Note that it predated, in particular, cases like Gideon and Miranda, which began to spell out the right to counsel and the nature of due process. Given the evolution of constitutional law in the past sixty years, Quirin, even to the extent that it remains good law, is hemmed in by the laws that have grown up around it.

One can be a soldier without a uniform, but Padilla was not a soldier. The mere fact that you declare war on someone does not make them a soldier in international law. If the Congress declared war on drug dealers, that would not make them amenable to courts martial and abroagate their constitutional due process rights. Likewise, declaring war on civilian terrorists does not make them soldiers.

The next terrorist attack planned by KSM was the “apartments operation” assigned to Padilla. So if you go back and rephrase the Congressional authorization, replacing names for people it only describes, then the President was authorized to use military force against Khalid Sheikh Mohammed for the purpose of preventing him from sending Jose Padilla to blow up buildings and kill more Americans. The last time America declared war on a person was Pancho Villa, and before that maybe collectively the Barbary Pirates.

In his declaration on Padilla, the President then talked about “Al Qaeda, an international terrorist organization with which the United States is at war.” So Congress used its War Powers, and the President used his authority under Foreign Affairs and Commander in Chief. There is no War Power in Article III.

Technically, Al Qaeda is a “waaf”. It is an Islamic charitable foundation established during the Afghan war with the Russian Army. So you are right that Al Qaeda is not a military force, but that is why it is better to talk about the military force or Mujahideen associated with Al Qaeda. In all the President’s declaration, Padilla is described as being “closely associated with Al Qaeda”.

Bin Laden formally declared war on the US twice. He did so according to Islamic tradition and Sharia law. Then the armed forces associated with Al Qaeda blew up some embassies, attacked the USS Cole, and proceeded to the 9/11 attack.

We are not at war with a country, but in Viet Nam we were nominally at war with an insurgency inside a country with a friendly government, and in Korea we fought 250,000 Chinese “volunteers” who claimed to be associated with neither China nor North Korea. This has become a rather routine thing.

If you are waiting for Bin Laden to put on a uniform and give himself a Western rank, it won’t happen. He follows the example of the Arab armies that swept across the world 1400 years ago. They didn’t wear uniforms or have ranks, so neither will he. So either we adapt to the situation that has been presented to us or we die.

Bin Laden doesn’t have submarines, so he sends his Special Operations forces by commercial plane. All of the 9/11 hijackers arrives by plane at airports just like Padilla. However, the mode of transport has nothing to do with military status. Thousands of US soldiers, sailors, airmen, and Marines take commercial planes every day, and none of them is discharged from the Military automatically because they stepped onto or off of a plane. If Padilla was a soldier when he stepped onto the plane in Pakistan, he was a soldier when he stepped off it in Chicago.

The only war going on was a war between two factions in an Afghan civil war to which the United States was not a party until far later, and al-Queda was not a party to that war, the Taliban was. The Afghan civil war, by the way, is either over, or very nearly over. The country has a legitimate government, a new constitution, and one more election before its electoral ranks are filled, due in a month or two. The U.S. was a late ally of the Northern Alliance in that battle which tipped the balance against the Taliban. And, Padilla is not alleged to have encountered U.S. forces in his flight from that war.

9-11 was a terrorist attack by a group of people not affiliated with any government, not a war, any more than the Oklahoma City bombing, the previous World Trade Center bombing, the Millenieum plot, various ELF arsons, or other terrorist attacks prosecuted in the civilian courts were wars.

Al-Queda is not a military force. It is not an agent of any sovereign government, nor of any group seeking to become a sovereign government. Padilla was in civilian clothes because he had no military rank, no military commission, no military title, and certainly would not have understood himself to be a member of any military force any more than he was when he was a gang member in Chicago. He was a civilian. A civilian who may have been interested in doing illegal and murderous things perhaps, but a civilian citizen of the United States. Indeed, James Bond, who held a commission in the British military before becoming an MI6 agent in the famous series of stories and movies, carried arms illegal abroad, and was acting at the direction of a foreign government is far closer to the definition of a military spy than Padilla. (But, he was white and had a British accent and that appears to make up for a multitude of sins). And, taking Gilbert’s argument at face value, all Padilla would have to do to be a civilian spy triable in civilan courts, rather than a courts-marital, would be to sign up with the al-Queda equivalent of the CIA instead of the DIA, which seems an odd basis for making a distinction in someone’s rights, beside the fact that it is an angels on pinhead question that attempts to fit square pegs into round holes.

The German sabatouers in WWII arrived via a U-Boat run by the Germany government at a time when the United States and the German government were in a declared war to a place he didn’t reside. Padilla arrived on a commercial airplane through commercial airports, without disguising his identity, on his own legitimate passport to his own hometown (and incidentally, did not, it turns out, have a dirty bomb plot in mind after all, as the DOD has acknowledged).

Under those circumstances, and given that the Supreme Court has very recently addressed the detention-of-American-enemy-combatants issue under a relatively similar set of facts, I think it is fair to call the Padilla cert petition a “longshot.” And the purpose of my original post was to suggest that it would become an even longer shot if the Fourth Circuit vacates its decision.

I suspect that DOJ higher-ups are very nervous. They risk not just losing favorable predenct; they also risk losing the respect of a judge (and federal court) ordinarily sympathethic to the government’s arguments.

No judge wants to feel used by federal prosecutors. And judges like Luttig – mindful of separation of powers – are especially sensitive to this. This will be interesting to watch.