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September 10, 2005
On Padilla, and Remembering Ex parte Endo
I think the court is mistaken, primarily because it misreads the U.S. Supreme Court's decision in Ex parte Endo, 323 U.S. 243 (1944), the case that held unlawful the detention of Japanese Americans during World War II.
Padilla: the Background
If you've not been following this case, here's the scoop, very briefly:
A week after the 9/11 terrorist attacks, the Congress passed a resolution that read as follows:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
You'll notice that the resolution says nothing specifically about the power to detain, let alone to detain American citizens.
The question before the Fourth Circuit (and, probably, soon back before the Supreme Court) is whether the language of the congressional resolution should be read to have conferred on the President a power indefinitely to detain a person he believes to be an illegal enemy combatant, without charging him with any sort of crime in the civilian justice system,where that person is a U.S. citizen and is apprehended in the United States.
The Supreme Court recently held that the resolution authorized the detention of Yaser Hamdi, a U.S. citizen who was an alleged illegal enemy combatant and was captured overseas.
The crucial distinction in the Padilla case, obviously, is the place of arrest: Padilla was arrested at O'Hare Airport.
The Relevance of the Japanese American Internment and Ex parte Endo
Think now, for a moment, about precedents: when in U.S. history has the executive asserted an authority to arrest and indefinitely detain U.S. citizens on American soil without charging them with any sort of crime?
This is what the government did to some 70,000 American citizens of Japanese ancestry in WWII. The theory was, of course, not that Japanese Americans were "illegal enemy combatants"; the theory was, in a sense, that they had the potential to be such—subversives for a foreign enemy, on U.S. soil.
In Ex parte Endo, 323 U.S. 283 (1944), the U.S. Supreme Court unanimously** held that Executive Order 9066, authorizing the evacuation of Japanese Americans from the West Coast, and the legislation Congress passed to enforce that Order, could not be read to confer on the War Relocation Authority ("WRA") a power indefinitely to detain Mitsuye Endo, an American citizen of Japanese ancestry in one of the WRA's Japanese American camps.
The problem in Endo was not that Endo's detention violated her constitutional rights. The Court didn't need to address that question, because it found that the WRA had no power to detain her at all.
But the Endo Court didn't see Endo's constitutional rights as irrelevant to the case. Quite the contrary. It began its analysis this way:
Broad powers frequently granted to the President or other executive officers by Congress so that they may deal with the exigencies of war time problems have been sustained. And the Constitution when it committed to the Executive and to Congress the exercise of the war power necessarily gave them wide scope for the exercise of judgment and discretion so that war might be waged effectively and successfully. Kiyoshi Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382. At the same time, however, the Constitution is as specific in its enumeration of many of the civil rights of the individual as it is in its enumeration of the powers of his government. Thus it has prescribed procedural safeguards surrounding the arrest, detention and conviction of individuals. Some of these are contained in the Sixth Amendment, compliance with which is essential if convictions are to be sustained. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241. And the Fifth Amendment provides that no person shall be deprived of liberty (as well as life or property) without due process of law. Moreover, as a further safeguard against invasion of the basic civil rights of the individual it is provided in Art. I, Sec. 9 of the Constitution that 'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.' See Ex parte Milligan, supra.We mention these constitutional provisions not to stir the constitutional issues which have been argued at the bar but to indicate the approach which we think should be made to an Act of Congress or an order of the Chief Executive that touches the sensitive area of rights specifically guaranteed by the Constitution.
The Court continued:
This Court has quite consistently given a narrower scope for the operation of the presumption of constitutionality when legislation appeared on its face to violate a specific prohibition of the Constitution. We have likewise favored that interpretation of legislation which gives it the greater chance of surviving the test of constitutionality. Those analogies are suggestive here. We must assume that the Chief Executive and members of Congress, as well as the courts, are sensitive to and respectful of the liberties of the citizen. In interpreting a war-time measure we must assume that their purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of war.
The Fourth Circuit's Misapplication of Endo
In Padilla, Judge Luttig made short work of Endo. Luttig assumed that the important language in Endo was the language that directly followed what I just quoted, when the Court said, "We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used." This would seem on its face to doom the claim of executive power in Padilla: surely language of the congressional resolution after 9/11 did not "clearly and unmistakably indicate" a power to detain U.S. citizens arrested on American soil.
And yet Judge Luttig brushes this language aside, seizing upon a different sentence in the Endo opinion: "The fact that the Act and the [executive] orders are silent on detention does not of course mean that any power to detain is lacking. Some such power might indeed be necessary to the successful operation of the evacuation program." This language seems to negate what went before, in a way quite helpful to the government in Padilla. The fact that the congressional resolution was silent on the President's power to detain U.S. citizens does not mean, under Endo, that it did not give the President such a power.
Fair enough.
But the language Luttig seizes upon decidedly does not negate the Endo Court's assertion that "in interpreting a wartime measure we must assume that [Congress's] purpose was to allow for the greatest possible accommodation between [an individual's] liberties and the exigencies of war."
And how is the Court to give force to that assumption?
Here the Endo Court is quite explicit – and tellingly, Judge Luttig does not even cite the Court's language. The unanimous Endo opinion said that "[i]f there is to be the greatest possible accommodation of the liberties of the citizen with this war measure, any such implied power must be narrowly confined to the precise purpose of the evacuation program.
This language should look familiar to any student of constitutional law: it is the rudiments of what we call "strict scrutiny"—a requirement that a law serve its purpose as narrowly and carefully as possible in order to survive judicial review. Typically we see strict scrutiny deployed as a test of a law's constitutionality; in Endo the Court uses it as a way of construing the language of an Executive Order and its implementing statute to avoid directly confronting constitutional problems.
The U.S. District Court Judge in this case held back in February that Padilla's indefinite detention was unlawful. He reasoned that the ready availability of the civilian criminal courts made Padilla's indefinite detention unnecessary:
"Petitioner in this action was captured in the United States. His alleged terrorist plans were thwarted at the time of his arrest. There were no impediments whatsoever to the Government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing. Also at the Government's disposal was the material witness warrant. In fact, the issuance of a material witness warrant was the tool that the law enforcement officers used to thwart Petitioner's alleged terrorist plans. Therefore, since Petitioner's alleged terrorist plans were thwarted when he was arrested on the material witness warrant, the Court finds that the President's subsequent decision to detain Petitioner as an enemy combatant was neither necessary nor appropriate.""[W]hereas it may be a necessary and appropriate use of force to detain a United States citizen who is captured on the battlefield, this Court cannot find, in narrow circumstances presented in this case, that the same is true when a United States citizen is arrested in a civilian setting such as an United States airport."
Judge Luttig in the Fourth Circuit dismissed the district court's holding:
"[W]e believe that the district court ultimately accorded insufficient deference to [the President's] determination [that Padilla should be indefinitely detained as an enemy combatant], effectively imposing upon the President the equivalent of a least-restrictive-means test. To subject to such exacting scrutiny the President’s determination that criminal prosecution would not adequately protect the Nation’s security at a very minimum fails to accord the President the deference that is his when he acts pursuant to a broad delegation of authority from Congress, such as the [resolution Congress passed after 9/11].
But Endo makes plain that a least-restrictive-means test is precisely what a court should use in a situation like this.
Does the President's order in Padilla pass such a test? Surely it does not. At Balkinization, Marty Lederman demonstrates powerfully that over the course of the litigation, purported purpose of Padilla's detention has switched from a theory of preventing him from pursuing his alleged plans here in the United States to a theory of preventing him from "returning to the battlefield" in Afghanistan. The latter theory, as Marty shows, is an invention of Judge Luttig's; and the change of theories mid-stream tends strongly to undermine the notion that the government really has a crucial purpose at all. (Think, for a moment, of how the government followed its dire claims about the peril posed by Yaser Hamdi with a decision to free him and send him to Saudi Arabia with the warning that he should be a good boy from now on.)
In addition, the government does not explain why preventive steps well short of indefinite military detention—criminal prosecution, for example—would fail to protect the nation.
It is difficult to overstate the significance of Judge Luttig's ruling. With nothing more than congressional silence to go on, Judge Luttig endorses the proposition that a President may single out an American citizen, grab him on American soil, and do something close to making him "disappear."
A couple of years back, Professor Pat Gudridge of the University of Miami urged us to "Remember Endo" in an essay (with that title) in the Harvard Law Review. This would be an especially good moment for the Supreme Court to heed Gudridge's advice.
**As a commenter notes, "unanimously" is slightly misleading. All nine Justices agreed that the government lacked the power to detain Endo under Executive Order 9066 and its impementing legislation. Eight Justices joined Justice Douglas's Opinion for the Court, which held that the government lacked the power to detain because no law had authorized it. Justice Roberts concurred in the result, but reached the conclusion that the government lacked the power to detain because the Constitution forbade it.
(post updated slightly to describe Marty Lederman's point more accurately.)
Posted by Eric at September 10, 2005 9:45 PM
Comments
So, will the Supreme Court hear the appeal?
Posted by: A N Other at September 10, 2005 10:53 PM
Are we still assuming that there are five votes to free Padilla? (Breyer, Souter, Ginsburg, and Stevens, who dissented in the first Padilla case, plus Scalia, who voted to remand the case due on procedural grounds but whose dissent in Hamdi would seem to apply a fortiori to Padilla.) That was the way most people read Padilla I in 2004, if memory serves. Any thoughts? Luttig's opinion is technically within the bounds of precedent - insofar as, as Froomkin and Volokh pointed out at the time, adding up votes from two different opinions doesn't create a holding - but it seems destined to fall unless someone changes his mind.
Posted by: Evelyn Blaine at September 11, 2005 1:55 AM
Was Endo unanimous? I thought Roberts concurred only in the result?
Posted by: Simon Spero at September 11, 2005 12:33 PM
Marietta,
Denying access to families, courts, counsel? Are we talking about the same guy? He's got a bevy of lawyers and the only reason he's being discussed is because he's got access to the courts. Or were you talking about someone else?
Posted by: Jimbeaux at September 11, 2005 5:13 PM
One difference is that in war, and even times of unrest, the right of habeas can be suspended by Congress. In effect, this lets the executive violate a person's right because s/he cannot go to Court to demand that their rights are protected against wrongful detention.
As to Padilla I, did the situation change any now that the gov't has a new theory? Likewise, why did the 4th Cir. include all those scary "facts" when the district court did not? Many people note that the stipulations were pretty damning.
Posted by: Joe at September 11, 2005 5:27 PM
Jimbeaux;
Yes, we're talking about the same guy. This decision means that Padilla no longer has any rights other than those the administration chooses to give him. Since the government has fought his access to counsel in court repeatedly, I'd say his chance of getting any real legal counsel in the future is close to nil (unless the ruling is overturned by SCOTUS). From the moment the President declared him an enemy combatant, they held him incommunicado until forced to let him meet with counsel by the courts, and this decision essentially puts a stop to that avenue. Same thing for access to the courts. If the government chooses, they can try him before a military tribunal, but they have no obligation to do so. Essentially, they can hold him forever without charge or trial. More importantly, from my point of view, is that they could do the same to me or you tomorrow and, since this is all now settled law (pending cert by SCOTUS), we'd never see the inside of a courtroom at all.
Posted by: Mojo at September 11, 2005 6:55 PM
I know this doesn't make it right for you, but it's not like this kind of thing just happened out of the blue. Non-uniformed saboteurs were executed during the Civil War, Roosevelt offed the same type of guy during WWII, and even Major John Andre had to endure a summary military tribunal and execution. I know there's an argument to be made (and a quite reasonable one) that the present detentions are not explicitly authorized by Congress. But that's a legal question -- it's quite another thing to go into full panic mode.
Posted by: Jimbeaux at September 12, 2005 2:43 AM
Yeah, I saw Jose's face plastered everywhere, too. It was around the spring of 1995, I think.
Posted by: Conspiracy guy at September 12, 2005 2:45 AM
I didn't think I was being snarky.
I don't have to imagine it: according to you, I do live in a country where civil liberties have been suspended.
I work in the criminal justice system everyday -- just not as an inmate.
Snarky MacSnarkbushitler
Posted by: Conspiracy guy at September 12, 2005 11:25 AM