This is from pages 22-23 of U.S. District Court (Charleston, South Carolina) Judge Henry Floyd’s important decision in the case of Jose Padilla:
2. Suspension of the writ of habeas corpus
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Const. Art. 1, S. 9, cl. 2. This power belongs solely to Congress. Since Congress has not acted to suspend the writ, and neither the President nor this Court have the ability to do so, in light of the findings above, Petitioner must be released.
3. Other measures
If the law in its current state is found by the President to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the President should prevail upon Congress to remedy the problem. For instance, if the Government’s purpose in detaining Petitioner as an enemy combatant is to prevent him from returning to the field of battle and taking up arms once again[,] Hamdi, 124 S.Ct at 2640, but the President thinks that the laws do not provide the necessary and appropriate measures to provide for that goal, then the President should approach Congress and request that it make proper modifications to the law. As Congress has already demonstrated, it stands ready to carefully consider, and often accomodate, such significant requests.
Accordingly, in light of the foregoing discussion and analysis, it is the judgment of this Court that Petitioner’s Motion for Summary Judgment on Counts One and Two of the Petition, as well as his Petition for a writ of habeas corpus must be GRANTED.
Judge Floyd sounds like a strict constructionist.
Here is what George Bush said about judges and the U.S. Supreme Court in the second presidential debate:
And so, I would pick people that would be strict constructionists. We’ve got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.
Can someone please remind the President what he said.
Release Jose Padilla, or charge him.
— Steve Clemons
(ed. note: thanks to JR for sending this.)