Balkin on Padilla

Yale Law Prof Jack Balkin has a must-read post up (actually, it's almost a week old, but hey---I'm behind) about the case of not-in-any-legally-contestable-way-alleged dirty bomber Jose Padilla. Here are some excerpts:

By indicting Padilla now, The Bush Administration moots Padilla's appeal to the Supreme Court. It also leaves standing the Fourth Circuit's decision in the Padilla case, which broadly upheld the President's power to detain U.S. citizens like Padilla as unlawful combatants. (See Marty Lederman's post here for an analysis).

That result is particularly worthy of note, for the Fourth Circuit opinion may yet come in handy if the Administration needs to hold another U.S. citizen within the geographical boundaries of that circuit. The Administration now knows that the Fourth Circuit is a Constitution-free zone. It can, if it needs to, declare someone an enemy combantant, thrown them into a military prison, and interrogate them at its leisure. It will take years for a citizen to exhaust his appeals and reach the Supreme Court; and when the citizen finally gets to the Supreme Court, the Administration has the option to indict and moot the case (as it did with Padilla) or, if the Court's personnel have changed sufficiently in the interim, risk an appeal to the Supremes.....

The Padilla case is a sobering lesson in how much leeway the President has to imprison and detain people for long periods of time in violation of the Constitution. The fact that the government's story about why Padilla was a threat has changed so frequently should give us pause the next time the government asserts that we should trust it when it rounds up U.S. citizens and claims the right to hold them indefinitely for our protection. Padilla may well be a very bad fellow, but we have a method of dealing with such bad fellows. It is called the rule of law, and we should not surrender it so readily merely because the President desires it.

This case should just plain terrify people who think it matters that ours is a government of laws, and not of men.

Ask yourself: if the Administration's conduct in this case is upheld, what is to stop the President or his lieutenants from locking up a political opponent on the simple assertion that said opponent is an "enemy combatant"? A couple years ago, I asked this question of a (quite liberal) friend who works as a career attorney for the DOJ. His answer basically was that the President wouldn't do that. Translation: Nothing would stop the President except for his own conscience.

Which is to say, if the Bush Administration's policy here persists, we have a government of men, and decidedly not one of laws.

On this case, I do find myself wondering: Where are all the people who think guns must be legal to prevent tyranny by the Federal government, when the current Administration so eagerly lays down the preconditions for federal tyranny? Where's Wayne LaPierre when you need him?