Appeals Court Orders Jose Padilla released in 30 Days!

FOXCNN

[jwalsh07]

The "Enenmy Combatant" cases have nothing whatsoever to do with the Patriot Act. They are based on the World War II case known as ex-Parte Quirin. The court in this case basically said that ex-Parte Quirin does not apply, because Congress has not declared any war, and so no war exists that has any Constitutional standing.

I doubt very much that any court would claim to be the arbiter of whether or not this country is at war. You got a link for that? That would be an incredible reac considering that Congress invoked the War Powers Act even in this time of runaway judical activism

[FreeAtlanta]

aka; Osama Bin Lopez

[JmyBryan]

Agreed. But the govt doesn't really care about prosecution, the want intel. This is not an easy case.

If you but any of Laurie Mylroies thesis on the 93 WTC bombing, large amounts of intel were routinely ignored for the sake of a verdict.

The Patriot Act and other 'extra-constitutional' powers are in some way necessary for this new war and certainly are going to make US citizens somewhat vulnerable to police state type abuses. Unfortunately, we do have 'wolves in sheeps clothing' among us - no way to find them without roughing up at least a few sheep in the process.

[aristeides]

In re Quirin (1942) upheld treating U.S. citizens as enemy combatants, but there the government's actions were explicitly authorized by Act of Congress. The Supreme Court in Quirin didn't make it clear whether that congressional authorization was necessary for its decision, and legal scholars have argued about the matter since. Looks like the majority in this Second Circuit panel held that congressional authorization is necessary.

[jwalsh07]

Agreed. But the govt doesn't really care about prosecution, the want intel. This is not an easy case.

Yup, and the Second Circuit just made it crappy law, for now.

[LurkedLongEnough]

He'll have to apply for a concealed butt chip permit before leaving confinement, though.

[clintonh8r]

Looks like a match to me.

[B Knotts]

Ditto.

[clintonh8r]

Possible upside: Once he's out he could lead to others or additional intel.

[jwalsh07]

It appears that the majority is arguing that the Joint Resoltuion authorizing force allows the President to interdict and kill Al Qaeda jihadists but does not allow their detention.

Interesting application of judicial activism because even if that was the case, that is a political question that should be resolved by COngress, not by two members of the Second Circuit.

[epluribus_2]

Only reason we have not declared war in constitutional terms is that there is no foreign state (at least yet) named as the enemy.

[FreeAtlanta]

A wild theory would be that if he did have a connection with the Oklahoma City Bombers and Islamics had a working relationship with separatists/white supremacists in order to start a world war between Muslims and non-Muslims, then that revelation might muck up the works on the war on terror.

The war on terror had to happen, but if it got out that we were manipulated into it, then not as many would be on board. Also, it might be a huge embarrassment that the connection wasn't found by Clinton's admin....never, mind, why would Bush care about not further embarrassing Clinton?lol

Maybe with Saddam gone and the Islamic terrorist organizations in shambles, more info on our war will be released. Sort of like the shows on the secrets of World War II.

I am eagerly waiting the History Channel documentary!

[sourcery]

You have it exactly backwards. No court has any Constitutional authority to decide whether or not a war exists. Constitutionally, only Congress has that authority. But Federal Courts do have the authority to decide what the law is, and to intepret the Constitutuion. In this case, the court has intepreted the Constitution to find that Congress has not declared any war.

Do you have a reference to an act of Congress that declares the US to be currently at war?

[xusafflyer]

Its not a big deal.

1. Congress will just declare him an enemy combatant like they did the guy in Afgan.

2. He will be charged, no bail allowed, and tried (which will take over a year)

or

3. He will get out and shot in the street.

[jwalsh07]

Only reason we have not declared war in constitutional terms is that there is no foreign state (at least yet) named as the enemy

A joint resolution authorising war is a declaration of war. There is no delineated method for declaring war but when Congress invokes the War Powers Act and authorises the President to interdict and kill our enemies that is a de facto declaration and the judiciary has no role to play in that at all.

[B Knotts]

Well, it shows me that if we would just go back to the old-fashioned idea of specifically declaring war when we want to go to war, and victory when we win, this stuff would be taken care of.

[B Knotts]

Why didn't we declare war against Iraq, then?

[FFIGHTER]

They will appeal, and even so they just release him and book him.

[visualops]

The dissent is very compelling IMHO.
http://www.foxnews.com/projects/pdf/121803_padilla_dissent.pdf

[jwalsh07]

You have it exactly backwards.

Right, up is down, left is right.

No court has any Constitutional authority to decide whether or not a war exists. Constitutionally, only Congress has that authority.

That would be correct but you're talking to the wrong guy. You need to be lecturing the Second Circuit.

But Federal Courts do have the authority to decide what the law is, and to intepret the Constitutuion. In this case, the court has intepreted the Constitution to find that Congress has not declared any war.

:-}, they have no authority to tell Congress how to declare war. The constitution is silent on the method of declaring war. A judical activist on steroids?

Do you have a reference to an act of Congress that declares the US to be currently at war?

 

Joint Resolution Authorizing the Use of Force Against Terrorists

 

To authorize the use of United States armed forces against those
responsible for the recent attacks launched against the United States.

Whereas, on Sept. 11, 2001, acts of treacherous violence were committed
against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the
United States exercise its rights to self-defense and to protect United
States citizens both at home and abroad, and

Whereas, in light of the threat to the national security and foreign
policy of the United States posed by these grave acts of violence, and

Whereas, such acts continue to pose an unusual and extraordinary threat
to the national security and foreign policy of the United States,

Whereas the president has authority under the Constitution to take
action to deter and prevent acts of international terrorism against the
United States.

Resolved by the Senate and the House of Representatives of the United
States of America in Congress assembled,

Section 1. Short Title

This joint resolution may be cited as the ``Authorization for Use of
Military Force''

Section 2. Authorization for Use of United States Armed Forces

(a) That 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 Sept. 11, 2011, 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.

(b) War Powers Resolution Requirements

(1) Specific Statutory Authorization -- Consistent with section 8(a)(1)
of the War Powers Resolution, the Congress declares that this section is
intended to constitute specific statutory authorization within the
meaning of section 5(b) of the War Powers Resolution.

(2) Applicability of Other Requirements -- Nothing in this resolution
supersedes any requirement of the War Powers Resolution.