Amicus Brief: Executive Seizure Violates Domestic Law

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This brief argues that the Executive Branch lacks the constitutional and statutory authority to hold Mr. Padilla as an “enemy combatant.” His seizure violates the ban against unilateral executive detention embedded into the very structure of the Constitution. The Constitution gives Congress—and only Congress—the power to determine when, if ever, extraordinary circumstances justify the suspension of habeas corpus (the right to have a court review the legality of detention). Far from suspending habeas corpus, however, Congress passed a law in 1971, expressly forbidding the Executive from detaining U.S. citizens without specific statutory authority. There is no such authority in this case.

The Executive’s labeling of Mr. Padilla as an “enemy combatant” changes none of this. The Commander-in-Chief power may authorize U.S. soldiers to seize enemies found in a zone of active combatant operations. But this is a far cry from an unfettered power to detain without charge any U.S. citizen seized by civilian forces in the United States. The Executive’s novel argument would allow it to exile anyone from the protection of our Constitution and laws simply through the artifice of labeling him—without any visible standards—as an “enemy combatant.”

The brief was written by Jonathan Freiman at the Lawyers Committee for Human Rights and signed by a diverse array of public interest organizations:

Cato Institute
Center for National Security Studies
The Constitution Project
Lawyers Committee for Human Rights
People for the American Way Foundation
Rutherford Institute