Reading a WaPo article from a few days ago, I was stunned to find the following exchange between Solicitor General Paul Clement and a panel of judges, as Clement defended the indefinite detention of Jose Padilla:
Luttig repeatedly pressed Clement, even after the solicitor general noted that Padilla's alleged intentions as a soldier of al Qaeda -- to target civilians -- constituted "unlawful combatantcy" even if he were on a battlefield in uniform.Let that sink in for a moment, because Judge M. Blane Michael has struck upon the heart of the Padilla matter:
"Those accusations don't get you very far," Luttig replied, "unless you're prepared to boldly say the United States is a battlefield in the war on terror."
Clement answered, "I can say that, and I can say it boldly."
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."
The White House is asking the courts to declare martial law. Not Congress, the courts. These are the same people that accuse judges who uphold our Constitutional rights of "legislating from the bench," and they're asking judges to circumvent due process and the legislature and declare martial law.