by Dan Stansbury

I have concluded that your opinion on this matter [in the Commentary entitled CLEAR SHOT ACROSS THE BOW] is that Jose Padilla be afforded the full rights of any other American citizen. The Padilla situation is an entirely different bushel of corn than Ex parte Milligan.

Milligan was under the jurisdiction of the courts of Indiana and the United States. Milligan at no time abandoned Indiana to take up arms against the United States. Should one take up arms against the United States one would be taking up arms against the United States Constitution and therefore all three branches of the United States would be bound by oath of office to defend against the aggressor. The United States does not exist absent the United States Constitution therefore an attack on one is an attack on the other and all of its component parts and people. Milligan at no time neither took up arms against nor attack the United States nor any of its parts or people. Milligan at no time abandon the jurisdiction governing him and lived within the laws therein. His intentions were not crimes. Americans don’t arrest people for thoughts, feelings or intentions just yet and nor do I believe we have done so to Padilla. Milligan was a protestor exercising his rights within the bounds of the law.

Padilla, on the other hand, had relocated to another jurisdiction- a jurisdiction that also happened to have declared itself to be at war with the United States, supported the policies and laws of his new jurisdiction, and engaged in activities to take up arms against the United States of America. I dare say the Supreme Court of the United States has never in its history decided on such a matter so I do agree that the Padilla issue is the first shot across the bow. We are in completely uncharted, and perhaps unforeseen, legal waters in this matter. I believe it will hinge upon, as all legal matters do, jurisdiction. I do not believe the Supreme Court will hear this case until the jurisdictional question is completely and solidly answered.

Allow me to pose the jurisdictional question as it occurs to me.

Was Padilla a citizen of the United States of America at the time of his arrest and therefore under the jurisdiction of the United States of America?

No. By his own free will, as well as according to his actions, Padilla abandoned the jurisdiction of the United States to a jurisdiction at war with the United States thus making him and enemy of the jurisdiction of the United States of America. As such Padilla was and has no judicial standing within the jurisdiction of the United States of America. And, since Padilla has no judicial standing in the United States of America, that puts him under the jurisdiction of his captors, in this case the Commander in Chief of the United States Military. The CIC of the US Military is the President of the United States who happens to also be the boss over the FBI, which is the agency that arrested, and I believe it can be successfully argued on behalf of the Department of Defense, Padilla.

Padilla wasn’t merely living in Illinois exercising his right to decent verbalizing of his intentions nor a Crip, a Blood, or a Hell's Angel. Padilla was, instead, an active soldier of the enemy apprehended so far behind our lines that he can now be confused for the thug next door.

It could be spun that we will give the enemy- Al Qa'eda- further ammunition with which to so well spread their vitriolic anti-Americanism by virtue of denying Jose Padilla his constitutional rights but I have argued otherwise and believe we should stand strong, fearless and unwavering in the face of such doubts.

Jose Padilla is not now, nor was he then, an American citizen and, therefore, he is not entitled to the rights of an American citizen. I shall spin it this way: Should We the People view Padilla any other way than an enemy soldier captured within our borders, We the People will validate the right of Al Qa’eda to exist within the jurisdiction of the United States of America and among any citizen who wishes to subscribe to it and thereby risk the extinction of all civil liberties.

Dan Stansbury

Mr. Berg-Andersson responds to Mr. Stansbury:

Your points are well taken, though I still disagree with your claim that Ex parte Milligan does not apply to Padilla. First of all, Milligan was part of a conspiracy that intended to arm freed Confederate POWs for potential future military action against Union authority; this was hardly lawful, peaceful protest! And, like Padilla flying into O'Hare International apparently with plans for terrorist attacks within high-rise apartment buildings, Milligan was stopped- by virtue of his arrest- before the conspiracy of which he was a part was ever carried out.

But, more to the point, Padilla was arrested by civilian authorities, not the military; therefore, he was not captured by those ultimately reponsible to the President of the United States in his capacity as Commander in Chief of the U.S. Military. Yes, it is true- as you have pointed out- that the President is also the ultimate boss of the Federal Bureau of Investigation, but that agency is under the Department of Justice, not the Department of Defense: therefore, Padilla was taken into custody by an agency that is part and parcel of the Cabinet Department charged with prosecution of violations of Federal law, violations- if the Justice Department be involved- must be prosecuted before the Federal courts so long as such courts are functioning normally, as they clearly were in Chicago on the day Padilla was arrested, which is exactly what the U.S. Supreme Court's decision in Ex parte Milligan requires!

I also disagree with you that the Supreme Court will hold back on issuing an opinion in the case of Rumsfeld v. Padilla merely over problems of Jurisdiction:

First of all, the case is titled Rumsfeld v. Padilla precisely because Secretary of Defense Donald Rumsfeld was the "Petitioner" for a Writ of Certiorari to have had the case heard by the Supreme Court en banc and Jose Padilla was the "Respondent", which means that Rumsfeld (who clearly does not want Padilla to be granted the Writ of Habeas Corpus and, as a result, tried in a regular Federal court) has already lost in the Federal court immediately below (the U.S. Court of Appeals for the 2nd Circuit in New York City which ruled, by a 2-to-1 vote, in Padilla's favor last December: this decision overturned a U.S. District Court decision of December 2002 in which that lower court had ruled that "[the President] has both constitutional and statutory authority to exercise the powers of Commander in Chief, including the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil.”). If the Supreme Court does not rule in this case, the appellate court's ruling overturning the trial court's ruling then stands and Padilla would, thus, win the right to have his Habeas Corpus petition heard in the U.S. District Court on remand (though the Supreme Court's refusal to rule on a case already decided by a lower court should never be misconstrued to imply that the high Court necessarily accepts the lower court's decision and/or reasoning per se ).

However, the high Court is quite likely to rule in Rumsfeld v. Padilla in some form or fashion (even if this be merely an acceptance of the appeals court ruling that the case be remanded to the U.S. District Court) by the end of this month (when its October 2003 Term of Court is scheduled to come to an end) if only because it has already heard Oral Argument on the case back on 28 April and it would be rather unusual for the Court to not rule on a case once it has already "granted Cert" ('lawyer-speak' shorthand for the Court having agreed to hear a case on Writ of Certiorari) and, further, already heard said Oral Argument. Of course, should the case, in fact, soon be remanded to the U.S. District Court by the Nation's highest Court, it is rather probable that any decision by the court below (whether for or against Padilla's Habeas Corpus petition) would thereafter be appealed-- so the Supreme Court is likely going to have to take up the issue at some point!