My analysis of Padilla

As noted last week, the Fourth Circuit has applied the Supreme Court's Hamdi opinion and held that an American citizen captured on American soil by civilian authorities may be detained indefinitely as an enemy combatant. As you will recall, Padilla flew to the United States in May 2002 in hopes of setting off a "dirty bomb." He was arrested by civilian law enforcement authorities upon his arrival at O'Hare International Airport in Chicago.

In Hamdi, the Supreme Court addressed "whether the Executive has the authority to detain citizens who qualify as 'enemy combatants'" (i.e., individuals who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States in Afghanistan). It answered the question in the affirmative. Considering that Padilla was armed and guarding a Taliban fortress during the conflict in Afghanistan, the Fourth Circuit had little choice but to apply Hamdi. The purpose of the detention of enemy combatants is to prevent their return to the battlefield. In theory, both Padilla and Hamdi could have returned to Afghanistan and carried out attacks on American forces. The locus of the capture, according to the Fourth Circuit, is not a determinative factor.

The crux of the Padilla opinion is the "battlefield." Although Padilla was captured in the United States, his presence on the foreign battlefield was enough to tag him as an enemy combatant and to subject him to indefinite detention. The way I read the Fourth Circuit's opinion, had Padilla not been in Afghanistan, but nonetheless traveled to the U.S. to engage in an act of terrorism, he could not be detained as an enemy combatant. It would not matter that since the Afghanistan war he had become the lieutenant of Osama bin Laden. The Padilla opinion hammers home that the determinative factor is the battlefield.

During oral arguments, Judge Luttig tried to get the government to argue that in the War on Terror the entire United States is a battlefield. The government refused to take that step. I suspect that if incidents of terrorist attack at home increase, the government might widen its definition of battlefield and assert that terrorists captured within the U.S. (citizen or not) can be held indefinitely as enemy combatants. This will invest the Executive with a massive amount of power and should give us pause so long as the civilian court system is operational and capable of hearing evidence against the alleged terrorists.

Logically, this will be the next step in enemy combatant case law.