Remember when a federal judge ruled that Jose Padilla needed to be either charged or released? Well, the Justice Department begs to differ. They have requested (PDF) that the judge postpone the decision to release Padilla. The justifications they put together are worth quoting at length, at least to note the irrelevance of the their arguments:
the government will suffer irreparable harm absent a stay of the court’s order. The President—as Commander in Chief of the armed forces…has determined that petitioner [Padilla] ‘represents a continuing, present and grave danger to the national security of the United States’ and that his military (as opposed to civilian) detention is ‘necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other government personnel, or citizens’
The argument is that the administration should be able to hold Padilla in military detention until it sees fit (if it sees fit) to try him. The DoJ implies that if Padilla is held in civilian detention rather than military, he will be a “present and grave danger to the national security of the United States…civilian detention will not suffice to ensure the Nation’s security.” It’s difficult to see how Padilla would be terrorizing the nation from a prison cell rather than a naval brig.
The sad part is that this is the most pertinent argument presented in the whole nine page document. The rest reads like a good old-fashioned threat, albeit couched in legal terms. As it reaches its dramatic close, the Justice Department writes,
The order, if not stayed, would preclude the President from exercising a power he believes to be necessary to prevent future terrorist attacks. In the event that the court of appeals or the Supreme Court vindicates the President’s authority and reverses this Court’s decision, any lapse in the President’s ability to exercise his constitutional authority would plainly amount to irreparable injury.
You might be asking yourself, how does charging Padilla with a crime, or detaining him in one detainment facility over another prevent the president from stopping future terrorist attacks? Legal experts are wondering the same thing.
The Justice Department further accused the court of overturning the president’s determination of Padilla’s status. Given that the determination of Padilla as a bad guy is based on an expanded military order never approved by Congress, you’d think the judge would have perfectly solid ground on which to question this. But the thing is—he’s not even doing that. The judge simply said that President Bush had to charge Padilla or release him. The Justice Department is simply making the leap in logic that simply by President Bush calling someone an “enemy combatant” that necessarily implies that he is, beyond a shadow of a doubt, guilty of terrorism.
This assumption may be what kicks this case up to Supreme Court. It will pose the question of what power and justification the administration wields in its assessment of who is an “enemy combatant” and what that means. Let’s hope this is answered sooner rather than later as the administration will most likely continue its questionable conduct in the name of our national security. As the Justice Department motion in the Padilla case concludes, “with respect to judgments about foreign policy and national security, it must be presumed that the President acts with the public interest in mind.” Yet the administration, when called upon to justify its behavior, has failed to provide legal grounds to support this presumption.