All talk of 'enemy combatant' is irrelevant as a nation cannot be at war with its own citizens.

Why not?

Recall the [link|http://en.wikipedia.org/wiki/American_Civil_War|US Civil War]:

Lincoln's victory in the presidential election of 1860 triggered South Carolina's secession from the Union. Lincoln was not even on the ballot in nine states in the South. Leaders in South Carolina had long been waiting for an event that might unite the South against the antislavery forces. Once the election returns were certain, a special South Carolina convention declared "that the Union now subsisting between South Carolina and other states under the name of the 'United States of America' is hereby dissolved." By February 1, 1861, six more Southern states had seceded. On February 7, the seven states adopted a provisional constitution for the Confederate States of America and established their capital at Montgomery, Alabama. The pre-war peace conference of 1861 met at Washington, D.C. The remaining southern states as yet remained in the Union. Several seceding states seized federal forts within their boundaries; President Buchanan made no military response.

Less than a month later, on March 4, 1861, Abraham Lincoln was sworn in as President of the United States. In his inaugural address, he argued that the Constitution was a more perfect union than the earlier Articles of Confederation and Perpetual Union, that it was a binding contract, and called the secession "legally void". He stated he had no intent to invade southern states, but would use force to maintain possession of federal property. His speech closed with a plea for restoration of the bonds of union. The South, particularly South Carolina, ignored the plea, and on April 12, the South fired upon the Federal troops stationed at Fort Sumter in Charleston, South Carolina until the troops surrendered.

A nation can certainly be at war against its own citizens.

Jose is a suspect of planning violent crimes at best and traitor at worst. In any case, the US Constitution means he gets charged in a timely manner.

Things are different when the military is involved. They have their own rules for their members (the [link|http://www.constitution.org/mil/ucmj19970615.htm|UCMJ], etc.). And the Geneva Convention discusses people who are [link|http://en.wikipedia.org/wiki/Enemy_combatant|combatants] - citizenship doesn't generally enter into the equation. What matters is whether they're lawful or unlawful combatants:

If there is any doubt as to whether the person is a lawful combatant they must be held as a POW until they have faced a "competent tribunal" (GCIII Art 5) to decide the issue. Combatants who may be deemed to be unlawful combatants include, spies, mercenaries, members of militias not under the command of the armed forces who do not fit into the categories specified above, and those who have breached other laws or customs of war (for example by fighting under a white flag).

Most unlawful combatants qualify for protection under the [link|http://en.wikipedia.org/wiki/Fourth_Geneva_Convention|Fourth Geneva Convention] (GCIV) until they have had a "fair and regular trial". Once found guilty at a regular trial, they can be punished under the civilian laws of the detaining power. The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Mercenary trial in Angola in June, 1976.

The US, after some prodding, set up the tribunals to determine whether people at Guantanamo were lawful or unlawful. I don't know if Padilla has had a similar tribunal hearing. Padilla would seem, based on what's public, to be an unlawful combatant. The rub is whether he fits in the "most" category. The 4th Geneva Convention is designed to protect civilians. It's hard to argue that he's a civilian in this circumstance.

It's not clear cut how Padilla's case should be handled legally if you feel that the Geneva Conventions and the Constitution are the most important rules. On the other hand, [link|http://thomas.loc.gov/cgi-bin/query/z?c107:S.J.RES.23.ENR:|Senat Joint Resolution 23], signed by Bush on September 18, 2001, gives him power to:

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Section 2a is pretty clear.

I expect that if Padilla appeals to the USSC, he will lose.

Those who want the Federal power to incarcerate US citizens this way to be restricted may have better luck in making sure that the details of SJ 23 are observed (e.g. the [link|http://www.cs.indiana.edu/statecraft/warpow.html|War Powers] restrictions).

Just so that I'm not misunderstood: I too am troubled by the thought of Padilla being held indefinitely without some sort of trial. But I do not think he has a right to a civilian court trail as he was not acting as a civilian. "But he's just a criminal," some say. I disagree. His legal status changed when SJ 23 was enacted - putting our government on a war footing.

IMO. IANAL. FWIW. YMMV.

Cheers,
Scott.