A federal appeals court now has determined that President Bush has the nearly unquestionable authority to designate as an "enemy combatant" any American citizen captured "in a zone of active combat in a foreign theatre of conflict."
This means that the President can, with the stroke of his pen, place into indefinite confinement any citizen captured abroad fighting against American interests. It is an extraordinary power for a President to have during a war that Congress never has formally declared and that could last, by anyone's guess, a hundred years or more.
But what about an American citizen "captured" on American soil? Is America itself, legally speaking, a battlefield? Are we living in a "zone of active combat," as the 4th U.S. Circuit Court of Appeals defined things Wednesday, without really knowing it?
Attorney General John Ashcroft apparently thinks so. He told the Financial Times last week: "If you talk to the people in New York, if you talk to the people who were at the Pentagon, they'd call those battlefields. We know they're not described as battlefields have been, historically, but the United States felt the sting of battle in a way that it hasn't for a long time."
Now, the Attorney General might simply be engaging in a bit of hyperbole, as is his wont, in an effort to remind people that the war on terror is unlike any other war the country has fought. Or Ashcroft might be saying for general distribution what the Justice Department is going to have to continue to emphasize in court in the case of the other "enemy combatant" detained since the war on terror began.
The 4th Circuit may have dispatched for the time being with Yaser Esam Hamdi, the Louisiana-born, Saudi-raised man captured last year in Afghanistan. But the federal courts have not yet definitively ruled on the fate of U.S. citizen Jose Padilla. And Padilla's future depends almost entirely upon whether the courts decide that America is, quite literally, a live battlefield in the war on terror.
Padilla was detained last year in Chicago as he got off a flight that had originated in Pakistan. He first was sent to New York and given a lawyer and started along his way through the federal justice system. But then, quite suddenly, he was transferred (in the middle of the night) into military custody and stripped of his right to see his attorney or even to face charges.
He now is being held, incommunicado, in a military brig - much in the same fashion as is Hamdi, now the reluctant, voiceless, poster-child for sweeping presidential power.
Officials haven't always agreed on why Padilla is where he is. Some officials believe that Padilla is a member of Al Qaeda or at least wanted to be a member of Al Qaeda. Some officials believe that Padilla was in the nascent stages of plotting a "dirty bomb" attack- a radiological explosion- somewhere in America. Other officials believe that Padilla is just a street punk who had delusions of grandeur but who got no further in his alleged plot that begging some other accused terrorists to help him get going.
Whatever Padilla's true story really is, he'll likely never get to tell it unless the 2nd U.S. Circuit Court of Appeals, which has jurisdiction over the case, comes to a different conclusion about "enemy combatants" than did the 4th Circuit.
Is that likely? I don't know. Is it possible? Yes. The Padilla case will turn on the issue of whether the sweeping presidential power to designate "enemy combatants" abroad also extends to similar designations on American soil.
That's where the Attorney General's statement comes in. If the government is going to convince the 2nd Circuit that the Padilla detention is lawful, it is going to have to convince that court that there is no legal distinction between an "enemy citizen" allegedly fighting America overseas and an "enemy citizen" allegedly fighting America from Chicago.
The 2nd Circuit judges won't be able to look to their colleagues on the 4th Circuit for an answer to that question. As noted in this space Wednesday, the federal appeals court in Virginia expressly declined to declare a rule that applies to "an American citizen captured on American soil or the role that counsel might play in such a proceeding." So the federal appeals court judges in New York-home of the 2nd Circuit-either can distinguish the Padilla case on its facts or extend the Hamdi case based upon the law.
In other words, Padilla's judges either can decide that the fact that he was captured in Chicago makes all the difference in the world when it comes to determining that President Bush has no absolute power to declare him an "enemy combatant." Or Padilla's judges can rule that the legal reasoning of the Hamdi case makes sense and ought to be extended to cover even those citizens captured at O'Hare Airport.
The Attorney General's statement seems to suggest that the Justice Department is ready to argue that O'Hare is every bit as much of a battleground as was the battleground in Afghanistan where Hamdi was captured.
If the 2nd Circuit doesn't' buy that argument, we might never hear it made again. But if Padilla's appeals judges make the legal leap from Hamdi to Padilla, from foreign "combatants" to domestic ones, or if the United States Supreme Court ultimately issues a ruling to that effect, we'll truly be on new legal ground.
Why? Because then the President will have the power - not that he'd necessarily use it, but still - to declare you or me "enemy combatants" and throw us in the brig without worrying too much that the federal courts are going to come to our rescue.
Okay, so maybe this Kafkaesque scenario won't happen to you and me, being the decent, law-conscious people that we are. But what, other than presidential restraint, would stop it from happening to any criminal suspect accused of any crime during this ceaseless war on terror?
The law sometimes moves in steps. The Hamdi ruling was a step in the direction of immense presidential power and little judicial oversight. But it was a step that affects the rights only of those few citizens who might be inclined to break the law overseas. The next step, however, will hit home - literally and figuratively. Not just for Padilla, who doesn't deserve a ton of sympathy from anyone, but potentially for the rest of us as well.
By Andrew Cohen By Andrew Cohen