In the year 1679 the English Parliament convened to enact the Habeas Corpus Act with a view to "the better securing of the liberty of the subject…" The purpose of the Act was to prevent unlawful imprisonment, those holding the King’s subjects in custody having to "certify the true causes" of an individual’s "detainer or imprisonment."

The right of habeas corpus was adopted as a fundamental right in the United States Constitution, as is manifest explicitly in Section 9 of Article I: "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." Further, the Sixth Amendment to the U.S. Constitution requires that the accused in a criminal prosecution shall "be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence."

It is thereby a matter of heightened scrutiny that the United States Court of Appeals for the Fourth Circuit reversed a lower court opinion in the case of Jose Padilla. The lower court held that President Bush does not have the authority to detain Padilla, his detention being a violation of Padilla’s constitutional rights, so that the government must either criminally charge him or release him from custody.

Padilla (aka Abdullah al Muhajir) filed a petition for writ of habeas corpus in the United States District Court for the District of South Carolina on 02 July 2004, claiming that he "has been unlawfully imprisoned without trial for over two years as an ‘enemy combatant’ in violation of his rights under the laws and Constitution of the United States of America." In that petition Padilla claims that he "has not been given fair notice of the Government’s case against him" and "no opportunity to be heard by a neutral decision maker and contest the factual grounds for his imprisonment." He further asserts that he "is not an ‘enemy combatant’" and "disputes the factual allegations underlying the Government’s designation of him as an ‘enemy combatant.’" As of the date of the petition Padilla had been "imprisoned for more than two years without being charged with any criminal offence;" indeed, "no grand jury sitting in any district in the United States has returned an indictment charging him with any criminal conduct, including treason. No complaint has been filed in any United States District Court that charges him with any criminal conduct, including treason." Accordingly, Padilla argues, his "ongoing detention without criminal charges violates the Fourth, Fifth and Sixth Amendments to the United States Constitution, as well as the Treason Clause of Article III, and the Habeas Suspension Clause of Article I."

An earlier Supreme Court decision in Rumsfeld v. Padilla issued in June 2004 did not reach to the merits of the case (i.e., "does not reach the question whether the President has authority to detain Padilla militarily") but engaged the question of jurisdiction. Writing for the plurality, Justice Rehnquist (Justices O’Connor, Scalia, Kennedy, and Thomas joining; Justices Stevens, Souter, Ginsberg, and Breyer dissenting) held that the District Court for the Southern District of New York "lacks jurisdiction over Padilla’s habeas petition" and stipulated that "The District of South Carolina…was where Padilla should have brought his habeas petition," which of course is why Padilla filed in 2004 in South Carolina."

In writing the three-panel opinion (circuit judges Luttig, Michael, and Traxler), Judge Luttig observed that "The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this Country who is closely associated with al Qaeda, an entity with which the United States is at war…" The panel concluded, "that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001" and, accordingly, reversed the judgment of the district court.

The decision by the 4^th Circuit Court has profound implications for the status of the right/privilege to writ of habeas corpus expected by U.S. citizens. As Justice Stevens wrote in his dissent in Rumsfeld v. Padilla, "At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraint imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber." Further, argued Stevens, "if this Nation is to remain true" to its ideals, then "it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

Justice Stevens’s assessment is hardly to be gainsaid. A president who argues against tyranny on behalf of freedom and democracy cannot justly adopt the means of tyranny on behalf of some social purpose, including that of national security. The decision in Padilla v. Hanft finds President Bush’s authority to be given in Congress’s joint resolution, according to which the 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…in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons." The Court argued in Padilla v. Hanft that because "Padilla is an enemy combatant" and because "his detention is…necessary…in order to prevent his return to the battlefield, the President is authorized by the AUMF to detain Padilla as a fundamental incident to the conduct of war." The Court , like the district court before it, "acknowledged the need to defer to the President’s determination that Padilla’s detention is necessary and appropriate in the interest of national security"—"pursuant to a broad delegation of authority from Congress, such as AUMF."

There is a fundamental problem here insofar as the Court’s holding in Padilla v. Hanft defers to the president’s authority without restriction, as if there is no allowable reason to challenge the president’s "determination" of an individual’s status as an "enemy combatant," or as someone "closely associated with al Qaeda," who "engaged in conduct that constituted hostile and war-like acts," and thereby "represents a continuing, present and grave danger to the national security of the United States," the individual’s "detention…necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens."

The legal question relates to the ethical dimension of the matter. Noted philosopher Ronald Dworkin has written extensively on matters of jurisprudence, a proponent of a theory of law as integrity (e.g., Law’s Empire, 1986) according to which moral principles relate to positive law and are themselves properly to be construed as law in a setting of legal practice. As one committed to a deontological perspective in ethical theory, Dworkin sets forth claims such as the following:

• If a government is willing to disregard a person’s fundamental rights for some useful social purpose, then that government fails to respect the dignity of the person.
• If a government fails to respect the dignity of the person, then that government undermines the idea of equality and justice within its domain.

A deontological argument on the Padilla detention may be presented as follows:

Premise 1: President George W. Bush claims that the American military has legal authority to hold "enemy combatants"—even American citizens—indefinitely and without charge or access to legal representation.

Premise 2: As a matter of fact, under President Bush’s executive order, the American military is holding "enemy combatants"—even American citizens—indefinitely and without charge or access to legal representation.

Premise 3: President Bush argues that "enemy combatants"—including American citizens so designated—may be held indefinitely and without charge or access to legal representation for the useful social purpose of national security against transnational terrorism.

Premise 4: Michael Ratner, President of the Center for Constitutional Rights, has argued that holding American citizens indefinitely and without charge or access to legal representation disregards a person’s fundamental right of habeas corpus ["Habeas Corpus is a Latin term which means "you should have the body," and is a legal principle which requires that the government must present an accused and arrested person before an impartial judge in order to prove that there exists just cause to hold that person against his or her will."]

Premise 5: If the government of the United States (represented by President Bush in his executive orders governing the treatment of enemy combatants) is willing to disregard a person’s fundamental right of habeas corpus for the useful social purpose of national security against transnational terrorism, then the government of the United States fails to respect the dignity of the person.

Premise 6: If the government of the United States (represented by President Bush in his executive orders governing the treatment of enemy combatants) fails to respect the dignity of the person, then the government of the United States undermines the idea of equality and justice within its domain.

Premise 7: The government of the United States (represented by President Bush in his executive orders governing the treatment of enemy combatants) is willing to disregard a person’s fundamental right of habeas corpus for the useful social purpose of national security against transnational terrorism.

Conclusion: Therefore, the government of the United States (represented by President Bush in his executive orders governing the treatment of enemy combatants) undermines the idea of equality and justice within its domain.

As Jacob G. Hornberger writes, "The ordinary procedure—the procedure that has been followed in the United States since our nation’s founding—would have been to charge him [Padilla] with federal crimes dealing with terrorism, indict him, bring him to trial before a jury, and, if convicted, sentence him." Hornberger warns: "If the Pentagon’s power to arrest Americans for terrorism and punish them without federal court interference is upheld by the courts, the floodgates will be open to omnipotent military power in America." The problem at base, however, is the continued insistence of the Bush Administration that it may prosecute a global war on terror indefinitely and wherever it believes it may engage transnational terrorists it deems a threat to national security, in contrast to the pre-9/11 understanding that transnational terrorism constitutes criminal act(s) subject to the appropriate criminal proceedings governed by relevant statute.

It remains problematic, as Hornberger says, that Congress "has remained silent and supine with respect to the Padilla doctrine and civil liberties since 9/11." The Bush Administration claims that transnational acts of terrorism after 9/11 constitute acts of war rather than criminal acts, thereby challenging any citizen’s claim to application of the Sixth Amendment to citizens "determined" by the President/Pentagon to be enemy combatants. Yet, it is this post-9\11 interpretation that remains to be tested and vindicated by federal judicial review. It is of great consequence that Congress has not taken action authorizing suspension of the privilege of the writ of habeas corpus consequent to the terrorist acts of 9/11; and, surely one may not reasonably conclude that the Joint Resolution (P.L. No. 107-40) authorizing armed conflict against Al Qaeda was signed into law with Congress’s express or implied consent to suspension of the right of habeas corpus.

Unless the federal judiciary has justices of the caliber of Stevens and those who joined him in dissent in the Court’s holding in Rumsfeld v. Padilla, American citizens may, to their moral and legal harm in the near- and long-term of a protracted "global" war on terror, be faced with what is merely the semblance of justice on matters of fundamental right, the judiciary transmogrified indeed.

Incipit the Pentagon’s "Star Chamber."