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Buried under the "Yes you did" "No I didn't" Katrina news today comes a fourth-circuit decision that has ramifications for us all. In the case of United States citizen Jose Padilla, the court ruled that Americans taken into custody on U. S. soil canbe held indefinitely, without charge, as enemy combatants, if the president says so:

In an opinion written by Judge J. Michael Luttig, who has been considered by President Bush for a nomination to the Supreme Court [!!!!!!], the panel said Mr. Bush had the right to detain Mr. Padilla as an enemy combatant under the powers granted the president by Congress after the Sept. 11 terrorist attacks in New York and at the Pentagon.

"The exceedingly important question before us is whether the president of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with Al Qaeda, an entity with which the United States is at war," Judge Luttig wrote. "We conclude that the president does possess such authority," citing the Congressional authorization. [. . .]

Jonathan M. Freiman, a New Haven lawyer who represents Mr. Padilla, said that he would appeal Friday's ruling. He said it was a "a sad day for the nation when a federal court finds the president has the power to detain indefinitely and without criminal charge any American citizen whom he deems an enemy combatant."

Not that I think I expect to be declared an enemy combatant any time soon, but this is of grave concern, that fundamental Bill of Rights protections can be overridden by the execitive if it wants to do so. I am very interested to see what the "literalists" or "originalists" whatever the Scalia-Thomas wing of the Supreme Court is calling itself these days makes of this very clear affront to Amendments four, five, six, and eight.

Moreover, dKos diarist (and someone who sounds like he knows what he's talking about) cwech writes that

Luttig's decision seems based nearly in its entirety on a gross misreading of Hamdi v. Rumsfeld. Luttig argues:

because, like Hamdi, Padilla is an enemy combatant, and because his detention is no less necessary than was Hamdi's in order to prevent his return to the battlefield, the President is authorized by the AUMF to detain Padilla as a fundamental incident to the conduct of war.

But while Luttig proceeds with such bizarre arguments that the Court upheld the right of the President to detain American citizens as "enemy combatants," a reading of the decision in Hamdi [.pdf] tells us that they quite clearly ruled that Hamdi must be allowed basic due process rights in accordance with the 5th and 6th Amendments, but Luttig clearly seems to think that they ruled the opposite.

We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.

Thus in accordance with the Hamdi decision the 4th Circuit should have ruled that Mr. Padilla cannot be detained without due process and the President must allow him to challenge his detention, see the body of evidence against him, and speak with a lawyer. None of these are rights that have been accorded to Padilla, and the 4th Circuit seems to have a difficult time comprehending their existence.

Should this decision be allowed to stand, it means that none of us would be guaranteed full due process rights should we somehow designated enemy combatants. This decision seems not to care that Padilla's trial has not been speedy, that the government has been throwing up many accusations against him to see what sticks, and that he (and the attorney he can't talk to) have no idea what evidence the government has against him. Despite all of these things, Luttig ruled, Padilla ought be just fine in his hearing with a "neutral decision maker"--i.e., possibly not even a hearing in a court of law.

Yes, yes, I know I have particular distaste for this administration and its policies, but this is something that any freedom-loving Bush supporter (which, gentle readers, may not actually be an oxymoron) also ought to be appalled about. Imagine the outrage had Bill Clinton decided that Paula Jones was an enemy combatant, or Ken Starr. (Sure, it seems unlikely, but not any more unlikely than the Jerry-Falwell hawked story that the Clintons were kingpins of Arkansas's murder and drugs empire.) And, sure, I trust President Feingold not to go around declaring this or that person to be enemy combatants, but I bet many Republicans don't.

Put simply, this decision runs exactly counter to every single inclination in the Bill of Rights, and the notions of limited and reasonable federal power in the rest of the Constitution. And it was written by a man who many believe to be a top contender for the Supreme Court.