The Second Circuit has just released a 2-1 decision in Padilla holding that the President may not indefinitely detain "terrorists" seized on US soil who are US citizens while blocking access to the courts. Somewhat unusually, the opinions are not in a single file; the majority opinion can be browsed (HTML converted from PDF) or downloaded (PDF, 185kb), while the partial dissent can be separately browsed (HTML converted from PDF) or downloaded (PDF, 77kb). The majority holding appears to dismiss Article II powers of the President as overruling Article III powers of the courts over US citizens seized and detained in the US.
Where, as here, the President's power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U. S. C. § 4001(a) (2000) (the "Non-Detention Act") prohibits such detentions absent specific congressional authorization. Congress's Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 (2001) ("Joint Resolution"), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists. In light of this express prohibition, the government must undertake to show that Padilla's detention can nonetheless be grounded in the President's inherent constitutional powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637-38 (Jackson, J., concurring). We conclude that it has not made this showing.
(Noted at Howard Bashman's excellent How Appealing.)
Given the uncomfortable "political prisoner" subtext and the frequency with which authors are so treated, the expected outraged pleas for reversal either en banc from the Second Circuit or through certiorari from the Supreme Court should be somewhat disturbing, even given the "hard" facts. Perhaps more as this relates to freedom of speech and writers after I think through both opinions.