The Second Circuit Court of Appeals has ruled President Bush exceeded his Constitutional authority by ordering US citizen Jose Padilla held as an enemy combatant without charge or legal representation, and that Padilla must be released from military custody within 30 days. The basis of the ruling was that Padilla was apprehended on US soil and was not engaged in "armed battle" against the US.
The Circuit Court ordered that Padilla be transfered to a civilian authority, that formal charges be brought against him (or not), and that -- regardless -- Padilla "must be afforded the rights guaranteed in the Constitution."
At this writing, the Justice Department says only that it is "reviewing the opinion." Since the authority of the president to unilaterally declare individuals to be "enemy conbatants" beyond all Constitutional protections is a central tenet of post-9/11 Bush doctrine, it seems certain that it will be appealed to the US Supreme Court.
Bush Can't Hold Alleged 'Dirty Bomb' Suspect
By Gail Appleson
NEW YORK (Reuters) - The president of the United States does not have the power to detain an American citizen seized on U.S. soil as an enemy combatant, a federal appeals court ruled on Thursday [12/18/03], in a serious setback to the Bush administration's war on terror.
The U.S. Second Circuit Court of Appeals, in a 2-1 ruling, said only the U.S. Congress can authorize such detentions and it ordered the government to release Jose Padilla from military custody within 30 days.
"Presidential authority does not exist in a vacuum and this case involves not whether those responsibilities should be aggressively pursued, but whether the President is obligated in the circumstances presented here to share them with Congress," the court said.
"Where, as here, the President's power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of Americans on American soil...."
In Washington, Justice Department spokesman Mark Corallo said, "We are reviewing the opinion." He declined further comment. [UPDATE: Later on 12/18, Corallo announced the Justice Dept. would seek an emergency stay ahead of further judicial review of the decision.]
The court said that the government can transfer Padilla, a U.S. citizen who has been held incommunicado in a Navy prison, to a civilian authority that can bring criminal charges against him. It said that if it is appropriate, he could also be held as a material witness in grand jury proceedings.
"In any case, Padilla will be entitled to the constitutional protections extended to other citizens," the panel said.
Padilla is a suspect in an alleged al Qaeda plot to detonate a radioactive "dirty bomb" in the United States. He was arrested at Chicago's O'Hare airport 18 months ago as he arrived from Pakistan. He was transported to Manhattan federal court system where he was held as a material witness in a federal grand jury investigation of the Sept. 11th attacks.
On June 9, 2002, the Bush administration classified him as an enemy combatant and he was transferred to a Navy prison in South Carolina.
His New York lawyers sought his release as well as access to their client.
Federal prosecutors have argued Padilla should not have access to attorneys because they said he posed a threat to national security and defense lawyers would interfere with his interrogation. They also believe defense lawyers could unwittingly be used to pass messages to al Qaeda operatives.
In recent arguments before the appeals panel, Deputy Solicitor General Paul Clement argued that after the Sept. 11 attacks, Congress authorized the president to take actions to stop future international acts of terrorism, including the right to detain American citizens indefinitely.
But the court disagreed. It said the congressional resolution did not contain language authorizing the detention of U.S. citizens captured on U.S. soil.
"Here, we find that the President lacks inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat."
In his dissent, Circuit Judge Richard Wesley said, "In my view, the President as Commander in Chief has the inherent authority to thwart acts of belligerency at home or abroad that would do harm to United States citizens."
The court emphasized that its ruling is limited to the case of an American citizen arrested in the United States and not on a foreign battlefield or while actively engaged in armed battle against the United States.
Padilla's challenge was supported by the American Bar Association, the nation's largest legal association, as well as a group of retired prominent federal jurists and an unlikely alliance of conservative and liberal public interest groups.
"The court's holding reaffirms that even in the post-September 11 world, the President of the United States is not above the law," said the Lawyers Committee for Human Rights. "We're deeply gratified by the court's holding. It reflects the bipartisan consensus that has developed in this country recognizing that the administration does not have the power to detain a U.S. citizen without rights indefinitely."
The U.S. Supreme Court has not yet decided whether to hear another U.S. enemy combatant's challenge to his open-ended detention. That case involves Yasser Esam Hamdi, an American-born Saudi who was captured on the battlefield in Afghanistan. His case differs from Padilla's in that Hamdi was captured on a foreign battlefield.
The Pentagon recently said it would allow Hamdi, who had been held incommunicado, access to a lawyer.
Amnesty International's expert on U.S. policy, Rob Freer, said his organization welcomed the ruling.
"We would obviously welcome this decision. We've said from the outset that Jose Padilla's treatment represents a denial of rights of due process under the U.S. constitution as well as a violation of international law...we urge the Bush administration to rethink its policy of detaining so-called enemy combatants, not just on the U.S. mainland but also in Guantanamo Bay and elsewhere."
Padilla Was Closely Associated with Al Qaeda and Trained and Worked Under Their Direction:
After his release from prison in the United States in the early 1990s, Padilla traveled to Pakistan, Egypt, Saudi Arabia, and Afghanistan, taking the name Abdullah Al Muhajir.
Padilla met with senior al Qaeda leaders, including Osama bin Laden lieutenant Abu Zubaydah, on several occasions while in Afghanistan and Pakistan in 2001 and 2002.
At the direction of al Qaeda, Padilla received training from al Qaeda operatives, including how to wire explosive devices. Padilla also conducted research on construction of a uranium-enhanced explosive device at al Qaeda's safehouse in Lahore, Pakistan.
Padilla discussed with senior al Qaeda operatives his involvement and participation in terrorist operations targeting the United States, including a plan to detonate a "radiological dispersal device" (or "dirty bomb") within the United States as well as other operations involving the detonation of explosive devices in hotel rooms and gas stations.
Padilla was directed by al Qaeda members to return to the United States to explore and advance the conduct of further attacks against the United States on al Qaeda's behalf.
Multiple Intelligence Sources Separately Confirmed Padilla's Involvement in Planning Future Terrorist Attacks Against the United States with Al Qaeda Leaders. As the Supreme Court said in the unanimous [1942] Quirin decision, sustaining the constitutionality of military detention without regard to the combatants’ citizenship: "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." [Note that the DOJ does not address the fact that al Qaida is not a "government."]
The Detainment of Padilla by Authorities May Have Prevented the Escalation of His Plan for Further Terrorist Attacks. Padilla, a.k.a. Al Muhajir, was arrested on May 8 when he flew from Pakistan to Chicago O'Hare International Airport. That arrest disrupted the exploration of potential terrorist attacks on U.S. soil.
The President Determined that Padilla Poses a Threat to Americans. On Sunday, June 9, 2002, President Bush, acting as Commander in Chief, determined that Abdullah al Muhajir, born in the United States as Jose Padilla, is an enemy combatant who poses a serious and continuing threat to the American people and our national security. Al Muhajir was subsequently transferred from the custody of the Justice Department to the control of the Defense Department.
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