All the world's a battlefield...

Michael Luttig: Throw away the key
And all the men and women merely combatants...

Va. Appellate Panel Hears Arguments in Padilla Case By Tom Jackman

RICHMOND, July 19 -- A top government attorney declared Tuesday that, in the war on terror, the United States is a battlefield, and therefore President Bush has the authority to detain enemy combatants indefinitely in this country.

Solicitor General Paul D. Clement's comments came as a three-judge panel of the U.S. Court of Appeals for the 4th Circuit is considering whether to overturn a lower court ruling that Jose Padilla should be charged with a crime or released. In 2002, Padilla, a former Chicago gang member and Muslim convert, was taken into custody by the military and has been held without trial since...

The panel assigned to hear the arguments was Judge J. Michael Luttig of Alexandria, an appointee of President George H.W. Bush, and two appointees of President Bill Clinton: Judge M. Blane Michael of Charleston, W.Va., and Judge William B. Traxler Jr. of Greenville, S.C.

The judges were most concerned with how to handle Padilla in light of the U.S. Supreme Court's ruling last year on Yaser Esam Hamdi. Hamdi, also a U.S. citizen, was captured by the military with Taliban forces in Afghanistan and placed in a Navy brig in Norfolk. The Supreme Court ruled that his detention was lawful but that he was entitled to a hearing to challenge the allegations against him...

But Michael said Padilla wasn't captured anywhere near a battlefield. "You captured Padilla in a Manhattan jail cell," Michael said. "What, in the laws of war, allows you to undertake a non-battlefield capture and hold them for the duration? I don't think you cite anything."

Michael, addressing Clement's claim that the United States is a battlefield, then asked, "to call the United States a battlefield, wouldn't you have needed a specific authorization from Congress? It's not up to us as a court to develop laws of war."

Luttig posed a hypothetical in which the president learned that a terrorist was about to bomb a building in Manhattan. "Does he have to call a U.S. attorney and wait for the man to be picked up by civilian law enforcement? If the president sends the military, it's illegal?" Luttig asked.

"If the military picks him up, he must be surrendered to civilian authorities," Patel said.

"We might as well not have a president of the United States," Luttig said, "if his hands are tied behind his back to protect the citizens of the United States. . . . This is a failure to appreciate the real world circumstances that can confront a president of the United States."...

No date was set for when the panel might rule. The losing side could then ask that the entire 4th Circuit rehear the case, after which the case would probably head to the Supreme Court.

Here is a hypothetical for Judge Luttig: if you where pretty sure a man was going to blow up a building in Manhattan, would the president have the right to capture him and lock him up in solitary confinement for the rest of his life without access to a lawyer? Because what is the point of having a president if he can't have people disappeared, right?