Tuesday, December 23, 2003

Padilla Watch Ruth Wedgwood, a former federal prosecutor, defends [registration required] the Bush administration's detention of Jose Padilla on the Op-Ed page of today's New York Times, and she makes a few good points.

But after referencing the 9/18/2001 joint congressional resolution, which she quotes as having

authorized the president to use "all necessary and appropriate force" against "those organizations or persons he determines planned, authorized, committed or aided the terrorist attacks on Sept. 11, 2001" in order to "prevent any future acts of international terrorism against the United States. [Her emphasis]

she makes a dubious claim, asserting:

Congress surely intended that Qaeda operatives who are planning direct attacks against American targets should also be restrained, at least when no other legal method is available.

A couple points are in order.

I don't have the congressional resolution in front of me, and am not (as Ms. Wedgwood is) a lawyer. But, to me, it seems a bit of stretch to read the authorization to use "necessary and appropriate force" as a license to deny normal due process protections to American citizens arrested on American soil.

If we lived in a country with no written constitution, and without a body of law that dealt with the detention of citizens without charges, then, maybe, Wedgwood's reading of the resolution would be plausible. Against the background of these institutions, though, her interpretation seems awfully, ahem, expansive.

And second, it's a bit disingenuous to say that "congress surely intended" to permit the kind departure from the norm that the Padilla detention represents. After all, the votes on the resolution were 98-0 and 420-1 in the Senate and House, respectively--and yet the detention of Padilla was bitterly controversial from day one.

So what gives?

Did a civil liberties hawk like Sen. Pat Leahy really think he was voting to support denying American citizens arrested on American soil fundamental legal protections? Did Rep. Barney Frank?

CONTRAPOSITIVE is edited by Dan Aibel. Dan's a playwright. He lives in New York City.