I’ve been pretty outspoken about my support for the Padilla detention. As far as I’m concerned, the “enemy combatant” designation is apt and is backed up by Supreme Court precedent. Padilla had legal recourse under the designation — his attorney filed a habeus corpus petition on his behalf — and so his detention is not denying him his Constitutional rights in the way many people are suggesting.

Yesterday a federal Judge upheld Padilla’s custody:

[Padilla’s attorney] Donna Newman argued that the government’s case against Abdullah al-Muhajir, an American citizen who also goes by the name Jose Padilla, was weak and that his constitutional rights have been consistently violated.

‘There is insufficient evidence for the government to obtain an indictment against Padilla,’ said Newman in a habeas corpus petition filed Wednesday.

But U.S. District Judge Michael Mukasey said he could not vacate a warrant allowing the government to hold al-Muhajir as a material witness, as Newman had requested.

He gave the government until June 21 to file a motion to dismiss the petition or transfer it to another jurisdiction.

[…] Newman has said the status of ‘enemy combatant’ doesn’t apply to her client since Congress had not declared war.

[…] Authorities said al-Muhajir’s refusal to cooperate with them was the main reason he was transferred to military custody. Al-Muhajir has been subpoenaed to testify before a New York grand jury looking into the events of Sept. 11.

Also Tuesday, U.S. officials told the Associated Press that al-Muhajir’s presence in Pakistan adds to evidence that evidence that some members of al-Qaida have begun using that country as a base to plan international terrorist operations.

For those of you interested, Instapundit’s sponsering a spirited debate on Padilla’s status here.

On Ms. Newman’s (oft contended) point that there can be no “enemy combatant” status lacking an official Declaration of War, Eugene Volokh notes:

International law, domestic law, and common linguistic usage have all long recognized that a nation can be at war without a declaration of war. The law and usage both focus on what is in fact happening, and not just on whether certain magic words have been used. The U.S. was at war during the Civil War, during the Korean War, and during the Vietnam War, though to my knowledge there were no declarations of war then. There is simply no legal or linguistic rule that says the contrary.

I’ve heard lots of good arguments as to why it would have been better had we officially declared war — that may in fact be so. But even without this declaration, we were certainly at war after 9/11, and I’d say that we’re at war now, too, though in a calm phase of the war. This isn’t hyperbole, or metaphor, but fact, and both law and usage recognize this fact.

. . . WITHOUT END: At the same time, we should recognize that, unlike with other wars, it may be very hard to tell when it’s over. In World War II, when Germany and Japan surrendered in 1945, we knew that the war was over, and that we could return to a basically peace-time footing (of course, until the next war). But now, when will we know that al-Qaeda is defeated, much less that all the other terrorist groups that may want to attack us are defeated? Even if 5 years pass without any terrorist attacks, how could we know that the threat of dirty bomb / nuclear bomb / plague weapon / chemical weapon threat is over, or even substantially reduced in magnitude?

Obviously, this can’t stop us from doing what we need to do to defend ourselves. But we can’t take comfort from claims that various measures are only temporary, war-time measures that will be lifted when the war is over. This war may never be over, in any traditional sense — or at least it may not be over until the world has gotten to be a much safer and America-friendly place than it is now.

Evidently Senator Biden, for one, agrees.

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