CommentaryJURIST Guest Columnist Stephen Vladeck of the University Miami School of Law says that a narrow interpretation of the US Supreme Court's classic 1866 ruling against military tribunals in Ex parte Milligan might actually be in the best interest of suspected dirty bomber Jose Padilla as he again takes his challenge to indefinite detention under presidential order before the US Supreme Court…
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Civil libertarians love Ex parte Milligan. The celebrated ruling unanimously rejected the use of military tribunals to try Confederate sympathizers for printing anti-Union propaganda in Indiana newspapers, and stood, at least when handed down, as an emphatic reaffirmation of the rule of law in the aftermath of the Civil War. Even today, Milligan as an abstraction has powerful rhetorical force. For that, we need look no further than a 1999 episode of Law & Order or the 1998 movie The Siege, both of which explicitly invoked the 1866 Supreme Court decision as the great bulwark against extrajudicial detention — executive imprisonment without charge.
It should come as no surprise, then, that allusions to Milligan are ubiquitous in the case of accused “dirty bomber” Jose Padilla. Padilla, a U.S. citizen, has been held in a South Carolina brig since June 2002 as an “enemy combatant,” without charge and without trial. Yet, as Padilla’s challenge to his detention makes its way to the Supreme Court for the second time in three Terms, the gravity of the constitutional question presented has been largely sidestepped in favor of the meaning of one decidedly ambiguous and open-ended statute — the Authorization for Use of Military Force (AUMF) passed by Congress one week after September 11. Padilla’s central contention is that the AUMF does not authorize his detention, and therefore does not satisfy the statutory mandate that “[n]o citizen shall be imprisoned or otherwise detained except pursuant to an Act of Congress.” Thus far, four federal courts have split on whether Padilla is correct, with the Fourth Circuit most recently answering “no” on September 9.
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Topic: The split in authority notwithstanding, even the most amateur Court watchers should have a fairly easy time forecasting the likely result in Padilla’s return trip to Washington because of two atypical facts: First, the very same case was before the (almost) very same Court just two years ago. Although the majority in Padilla I reversed the Second Circuit on jurisdictional grounds, the four dissenting Justices — Justices Stevens, Souter, Ginsburg, and Breyer — were unequivocal (albeit in a footnote) that they would hold Padilla’s detention unauthorized by statute, and therefore unlawful.
At the same time Padilla first came before the Supreme Court, the Court also decided Hamdi v. Rumsfeld, a case raising largely similar issues on largely similar facts, and which explains why Court watchers needn’t look far for a fifth vote. Although four Justices concluded that Hamdi’s detention was authorized by the AUMF, Justice Scalia was not one of them. To the surprise of everyone who didn’t listen to the oral argument, Scalia dissented, arguing, inter alia, that the Constitution allows extrajudicial detention only via legislative suspension of the writ of habeas corpus. Without reaching whether Congress had authorized Padilla’s detention, Scalia relied on the uncontested point that no such suspension had occurred in Hamdi’s case. Scalia was equally clear that the same argument applied to any U.S. citizen, including Padilla.
I do not mean to suggest that the result in Padilla II is a foregone conclusion. Anything but. But if the voting from Padilla I and Hamdi holds, Padilla appears to have at least five votes for reversing the Fourth Circuit, no matter who is ultimately confirmed to replace Justice O’Connor. The better question going forward, then, may not be whether Padilla will win, but how. Under well-established interpretive doctrines, there is no conflict between the two competing theories. The constitutional concerns emphasized by Justice Scalia only further bolster interpreting the AUMF as not authorizing Padilla’s detention, and therefore as not satisfying the Non-Detention Act. Under this reading, the Court need not reach the deeper constitutional question.
Enter Milligan. Although most who remember Milligan emphasize that the rejection of the tribunals was unanimous, history has long-since forgotten that the Court split right down the middle, 5-4, as to why. Justice Davis’s majority opinion held, in sweepingly broad language, that military tribunals were anathema to American democracy, and could never exist “where the courts are open and their process unobstructed.” But four Justices, led by Chief Justice Chase, concurred on narrower grounds, maintaining that Congress could constitutionally authorize military tribunals; they just hadn’t.
It was entirely because of the available narrower ground that Milligan came to be criticized as overreaching by a bloodthirsty Court weary of the civil liberties disaster that was the U.S. Civil War. And it was only the narrower opinion that was left intact by the 1942 case of the Nazi Saboteurs, Ex parte Quirin, in which the Court unanimously affirmed the use of military tribunals to try eight captured German infiltrators, one of whom was a U.S. citizen. Distinguishing Milligan, or at least Chief Justice Chase’s Milligan concurrence, Quirin heavily relied on the extent to which Congress had authorized the tribunals in question.
Milligan therefore suggests a critical consideration about Padilla, and one that has thus far been overlooked: In cases like this, the “why” matters. A lot. Although Congress has not yet passed a “Detention of Enemy Combatants Act,” there is no reason to think that, in the aftermath of a reversal of the Fourth Circuit in Padilla II, it wouldn’t. As Quirin and the current challenges to military tribunals make clear, it doesn’t take much from Congress for courts to find affirmative authorization, and to end their inquiry there. At the same time, although Justice Scalia’s constitutional argument — t
hat Congress couldn’t authorize Padilla’s detention without suspending habeas corpus — would provide a more lasting and satisfying victory for civil libertarians, it would be open to nearly all of the same criticisms that eventually doomed Milligan as anything more than a history lesson.
Practically, the only way to avoid the Milligan problem may be a holding that no one is arguing for — that the AUMF does authorize Padilla’s detention, and that it is unconstitutional when so construed. Then, the restatement of the underlying principle, that the Constitution only countenances extrajudicial detention through suspension of the writ of habeas corpus, would be unfettered by a narrower ground for the result.
As Padilla returns to the Supreme Court this Term, it is an odd theory to argue for, to be sure. But for those who find Padilla to be the ultimate litmus test in the war on terrorism; for those who can’t escape references to the infamous “loaded gun” from Justice Jackson’s Korematsu dissent; for those who believe that at stake in Padilla is nothing less than the essence of a free society — for people like me, in other words — it may be our only shot at anything more than a pyrrhic victory.
Stephen I. Vladeck is an Associate Professor at the University of Miami School of Law
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