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Bush cant order citizen held as enemy combatant { December 19 2003 } Original Source Link: (May no longer be active)
http://www.chicagotribune.com/news/local/chi-0312190304dec19,1,5857702.story?coll=chi-news-hedhttp://www.chicagotribune.com/news/local/chi-0312190304dec19,1,5857702.story?coll=chi-news-hed
Courts: Terror cases flawed
Bush can't order citizen held as enemy combatant
By Lisa Anderson, Tribune national correspondent. Tribune national correspondent Jan Crawford Greenburg in Washington contributed to this report
Published December 19, 2003
NEW YORK -- A federal appeals court ruled here Thursday that the president does not have the power to detain a U.S. citizen seized on American soil as an enemy combatant. The decision is a major legal challenge to the sweeping executive powers claimed by President Bush since he launched the war on terrorism.
Calling the ruling "troubling and flawed," the White House said the government would seek a stay and further judicial review of the decision.
The ruling concerns the case of Jose Padilla, an American citizen who was arrested in Chicago at O'Hare International Airport in May 2002. Suspected of conspiring with Al Qaeda terrorists in Afghanistan and Pakistan to detonate a radioactive "dirty bomb" in the United States, Padilla was designated by the president as an enemy combatant. As such, he has been held in the high-security Consolidated Naval Brig in Charleston, S.C., without charge and without access to a lawyer or family member for the last 18 months.
The court also instructed Defense Secretary Donald Rumsfeld to release Padilla, 33, from military custody within 30 days. Noting that the government had "ample cause to suspect Padilla of involvement in a terrorist plot," the court said the government has the option of turning Padilla over to civilian authorities to have criminal charges brought against him or to hold him as a material witness in connection with grand jury proceedings.
"Under any scenario, Padilla will be entitled to the constitutional protections extended to other citizens," the court said.
The three-judge panel of the 2nd U.S. Circuit Court of Appeals ruled 2-1 in the Padilla case that the president must have the specific authorization of Congress to detain American citizens on American soil. Such authorization, it said, is required under the Non-Detention Act, legislation passed in 1971 partly in response to the internment of Japanese-Americans during World War II.
The government argued that under the Constitution, the president has "inherent executive authority" to detain Padilla. Moreover, it contended that the Authorization for Use of Military Force Joint Resolution, passed by Congress seven days after the terrorist attacks of Sept. 11, 2001, provides the president all the authorization needed.
In a statement, the Justice Department said, "Clearly, Congress recognized that Al Qaeda and those who now do its bidding are a continuing threat to the United States."
In the majority opinion, Judges Barrington Parker and Rosemary Pooler, both appointed to the federal bench by President Bill Clinton, addressed this concern.
"As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat Al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protection the nation," said the court.
"But 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," it said.
In his dissent, Judge Richard Wesley, a Bush appointee, said, "In my view, the president, as commander in chief, has inherent authority to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens, and, in this case, Congress through the joint resolution specifically and directly authorized the president to take the actions herein contested."
Where a belligerent is seized and what citizenship he holds is irrelevant, Wesley wrote.
However, he agreed with the other two jurists that despite government concerns about compromising its gathering of information, Padilla should have the right to counsel.
"At the hearing, Padilla, assisted by counsel, would be able to contest whether he is actually an enemy combatant, thereby falling within the president's constitutional and statutory authority," he wrote.
"We look forward to seeing our client again," said Donna Newman, Padilla's court-appointed attorney, although it is far from clear when a meeting might happen.
Rights groups applaud
The decision was hailed by civil liberties groups as an affirmation of the Constitution and a rebuke to the administration for overstepping the rule of law.
"This is by far the biggest legal setback the administration has faced in the war on terrorism," said David Cole, a professor of constitutional law at Georgetown University and author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism."
"This is a great day for liberty," he said. "It says that U.S. citizens cannot be locked up on the say-so of one man, even if that man is president of the United States."
Others saw the decision as tilting the balance between national security and civil liberties too far in the direction of the latter.
John Yoo, a law professor at the University of California, Berkeley, and former Bush Justice Department official, said of the judges: "They think this is Sept. 10, 2001. They think we should handle terrorism the way we did before the attacks on the World Trade Center, which is to treat it like a crime and Al Qaeda operatives as criminal defendants."
If the government had to try suspected terrorists as criminals in civilian courts, they would consult with lawyers and refuse to talk, he predicted.
"In this war, information is the primary commodity," he said.
That reflects the government's argument that to allow Padilla, a former Chicago gang member, to consult with a lawyer before his interrogation is complete would compromise his value as a source of intelligence and possibly jeopardize national security.
Douglas Kmiec, professor of constitutional law at Pepperdine University, said the president has both inherent authority and congressional authorization to detain Padilla as an enemy combatant.
Professor opposes ruling
"The divided decision of the 2nd Circuit should be appealed and reversed, not only because the memory of this attack necessarily remains fresh in the national mind, but also because it would be foolhardy to believe that the threat of another attack has been erased," Kmiec said.
It remained unclear Thursday night whether the government would seek its stay from the 2nd Circuit or from the Supreme Court.
Copyright © 2003, Chicago Tribune
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