Virtually four years to the day terrorists levelled the World Trade Center, a federal court in the United States has delivered another shocking body blow to the edifice of civil society in that country. In a unanimous verdict on Friday, the U.S. Fourth Circuit Court of Appeals has upheld as legal one of the most controversial weapons the Bush administration has armed itself with in its "global war on terror": the power to incarcerate anybody — including U.S. citizens — indefinitely, without charge.
What this means is that unless the Supreme Court overturns this verdict, Mr. Padilla — like the non-U.S. prisoners at Guantanamo — will remain in legal limbo. And since the war on terror has been described by U.S. officials as "an endless war," the period of incarceration could also be endless. Indeed, the U.S. administration is now at liberty to invoke the power of indefinite detention against anyone it likes, since the Appeal Court considered the exercise of presidential powers to be unconstrained by any consideration about the authenticity of allegations levelled against an individual to be detained.
In other words, Judge Luttig and his colleagues have legitimised preventive detention without a time limit and without the need to demonstrate either necessity or proportionality.
President Bush has declared a war against a faceless, stateless enemy, and the power to detain `enemy combatants' is paramount, not the right of a citizen to contest the basis of his detention.