On September 9, in Padilla v. Commander C.T. Hanft, appellate Judge J. Michael Luttig reversed the federal district court ruling that ordered the government either to charge Jose Padilla with a crime, or release him.
Padilla, a United States citizen, was arrested by federal agents in May 2002. Two days before his federal court hearing the president declared Padilla an "enemy combatant" and ordered him transferred to a naval brig in South Carolina where Padilla has since been locked away in solitary confinement for over three years without charges.
In Apartheid Justice in America: Krugal vs. Padilla Mike Whitney observes that “originally, Attorney General John Ashcroft claimed that Padilla was a 'dirty bomber' who intended to detonate nuclear material within the US” but that this was later changed, and just recently the government has advanced yet another story. The story may have changed twice but one thing remains the same, the government has never been able to provide enough evidence to charge Padilla with a crime.
In an article dated September 24 for the Miami Herald, Gene Healy reports that “Judge Luttig held that the use-of-force resolution Congress passed prior to the war in Afghanistan was broad enough to authorize the seizure and prolonged detention of American citizens here in the United States.”
If the Supreme Court upholds the September 9th ruling in the Padilla case, it will effectively grant the executive branch the right to routinely serve as judge, jury, and jailer such as it is doing in the case of Padilla.