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Locke's Second Treatise of Government argues for the rule of law as just and rightful politics, not only in the fundamental legislation that is the constitution but also in regular governance by the legislature. Locke also argues for executive prerogative, the power of doing good without or even against law during contingency and necessity. Rule by legislation and rule by prerogative each preserve the political community and reflect its foundation out of the state of nature. But they do not easily coexist in the constitution, which provides no means to judge the rightful use of prerogative. President Lincoln's strong, discretionary actions during the crisis of the Civil War illustrate Locke's argument about prerogative's fundamental importance and its problematic relation to ordinary lawfulness. However, as Lincoln recognized, both the Constitution and Congress formally provided for an executive power that was remarkably compatible with the rule of law-and that thereby responded to the Lockean problem.
In June 2002, officials from the United States Defense Department took custody of Jose Padilla, an American citizen who had been held in the federal criminal justice system in New York. They were executing an order by President Bush that determined that Padilla was an "enemy combatant" (a category not defined in congressional statutes) and that he had acted in "preparation for acts of international terrorism" hostile to the United States. The order further determined the indefinite detention of Padilla to be "necessary to prevent him from aiding al Qaeda" against the United States. However, attorneys for Padilla brought a legal challenge against this exercise of executive discretion and force. In December 2003, a federal circuit court of appeals, deciding a habeas corpus petition for Padilla, held that neither the Constitution's grant of commander-in-chief power nor the Joint Resolution of Congress from September 2001 provides legal authorization for the President to detain an American citizen outside a zone of combat. The court ordered the Defense Department to release Padilla from custody and transfer him to "civilian authorities," who would follow the rules of criminal procedure in bringing formal charges against him and would recognize his right to the "constitutional protections extended to other citizens."1 The Bush administration continued this legal conflict, appealing the case to the Supreme Court. In June 2004,...