Citing these abuses, Congress in 1971 prohibited such detentions, providing that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress." The U.S. 2nd Circuit Court of Appeals relied on that statute last week in ruling that Jose Padilla, a U.S. citizen arrested at Chicago's O'Hare Airport, could not be detained on nothing more than the president's say-so.
Few of the detainees, either in the U.S. or at Guantanamo, have been American citizens. But as illustrated by the U.S. 9th Circuit Court of Appeals' simultaneous decision extending judicial review to foreign nationals at Guantanamo, skepticism about unilateral executive detention ought not to be limited to U.S. citizens.
Detaining the enemy on the battlefield has of course always been - - and remains -- a legitimate tool of war. Neither the 2nd nor the 9th Circuit ruled to the contrary. But they both insisted that preventive detention under U.S. jurisdiction must be subject to the rule of law. And the rule of law, like liberty itself, is not a right reserved for U.S. citizens.