JURIST Guest Columnist Stephen Vladeck of the University of Miami School of Law says that for all the issues presented at various junctures by the Jose Padilla case, none is more important – nor, at this point, more politically sensitive – than that concerning the extent of Presidential power under the 2001 Authorization to Use Military Force…

At various points, the case of accused “dirty bomber” Jose Padilla has raised a veritable bevy of distinct and complicated legal questions, including next-friend standing, the identity of the proper respondent in a federal habeas petition, the scope of New York’s long-arm statute, more general questions of procedural due process, mootness, and, most recently, a spirited debate over the meaning of the Supreme Court’s seldom-invoked Rule 36 (resolved, it would appear, by the recent Supreme Court order transferring Padilla to civilian custody). From the beginning, however, the core of Padilla’s legal challenge has been about a single threshold issue exceedingly simple in formulation: Does the Authorization for Use of Military Force (AUMF), signed into law just one week after September 11, authorize Padilla’s military detention as an “enemy combatant”? The central question has remained the same since Padilla first filed his habeas petition in June 2002, but the stakes have increased considerably over time, particularly in the four months since the Fourth Circuit’s September decision answering that question in the affirmative.

At the time it was initially filed, Padilla’s was one of only two cases directly implicating the Bush Administration’s broad reading of the AUMF. Only the already pending habeas petition of fellow U.S. citizen Yaser Esam Hamdi, also detained as an “enemy combatant,” turned so directly on the meaning of the AUMF. The central role of the AUMF was guaranteed by the so-called Non-Detention Act, 18 U.S.C. § 4001(a), which provides that “[n]o citizen shall be imprisoned or otherwise detained except pursuant to an Act of Congress.” With no other Act of Congress an obvious candidate for satisfying § 4001, the scope and meaning of the AUMF was the key to both cases from the start.

Yet, notwithstanding the importance of the AUMF to Hamdi and Padilla, it was hardly surprising that Chief Judge Mukasey, presiding over Padilla’s habeas petition in the Southern District of New York, wrote the following in early 2003:

Those to whom images of catastrophe come that easily might take comfort in recalling that it is a year and a half since September 11, 2001, and Padilla’s is not only the first, but also the only case of its kind. There is every reason not only to hope, but also to expect that this case will be just another of the isolated cases, like [Ex parte] Quirin, that deal with isolated events and have limited application.

Time, however, has proven Judge Mukasey’s optimism near-sighted. Although no other U.S. citizens have been detained as “enemy combatants” since (not yet, anyway), the AUMF has come to play an increasingly prominent (and far broader) legal role, especially in recent months. Specifically, the AUMF has been invoked by the Administration as providing congressional authorization for everything from domestic spying by the NSA to secret prisons abroad; from military tribunals for non-citizens to indefinite military detention in contravention of the Geneva Conventions. Put simply, the AUMF, an amorphous, ambiguous statute passed in the height of post-September 11 anxiety, has become the stated justification for virtually everything controversial that the President does, notwithstanding more specific congressional statutes purporting to foreclose the very authority that, according to the Administration, the AUMF provides (for example, consider Padilla and the Non-Detention Act).

But what does the AUMF actually say? Here’s the relevant part:

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 September 11, 2001, 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.

So, in all of these cases, as in Padilla, the question becomes what, exactly, the statute means by “necessary and appropriate force”? Writing for the Hamdi plurality in 2004, Justice O’Connor didn’t really answer that question; she held only that it clearly encompassed the detention of combatants captured on the battlefield. In her words:

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

Pointedly, Hamdi declined to analyze what limits, if any, there were on the “necessary and appropriate force” authorized by the AUMF. But this is the very issue at stake in Padilla.

More to the point, in the nineteen months since the Court decided Hamdi, identifying substantive limits on the authority conferred by the AUMF has become that much more important. Every time that the Administration has been pressed to explain the source of its authority to undertake controversial activity in recent months, its argument has consistently reduced to one of two claims: Either Congress has authorized the President’s actions through the AUMF, or the President has independent (and inherent) constitutional authority via the various powers conferred by Article II. If this sounds familiar, it should — this has been the Administration’s position in Padilla from day one, and this is why it is so important that the Supreme Court grant certiorari when it considers Padilla‘s second petition for certiorari.

In an earlier JURIST column, I described Padilla as “the ultimate litmus test in the war on terrorism.” It has only become that much more so in the intervening months. More than any other case currently in the pipeline, Padilla (1) presents the Administration’s theory of presidential power at its core; and (2) concerns an area where the inherent power argument has been the most heavily discredited. In short, Padilla is, or at least could be, the moment of truth for the government’s interpretation of the AUMF, and, as such, for the contention that Congress has implicitly authorized counter-terrorism activities that more specific statutes — and the American constitutional tradition — explicitly reject.