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Seized citizen is ordered released { December 19 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A13579-2003Dec18.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A13579-2003Dec18.html
Seized Citizen Is Ordered Released
Bush Overreached Powers, Court Says
By Michael Powell and Michelle García
Washington Post Staff Writers
Friday, December 19, 2003; Page A01
NEW YORK, Dec. 18 -- A federal appeals court ruled Thursday that President Bush does not have the power to declare an American citizen seized on U.S. soil an "enemy combatant" and hold him indefinitely in military custody.
The U.S. Court of Appeals for the 2nd Circuit, in a 2 to 1 ruling, gave the administration 30 days to release Jose Padilla, who allegedly plotted to explode a radioactive "dirty bomb." He has been confined to a South Carolina brig without access to an attorney for 19 months.
"The President's inherent constitutional powers do not extend to the detention as an enemy combatant of American citizens without express congressional authorization," the court concluded in a decision signed by Judges Barrington D. Parker and Rosemary S. Pooler. "Padilla will be entitled to the constitutional protections extended to other citizens."
Thursday's ruling constitutes one of the strongest judicial rebukes of the administration's tactics in the war on terrorism -- in this case, its policy of aggressively detaining suspects without formal charges and without access to lawyers or their families.
Also Thursday, a federal appeals court in California ruled that a detainee at the U.S. naval base in Guantanamo Bay, Cuba, should be granted a court hearing, and held open that possibility for all 660 alleged al Qaeda and Taliban fighters there. [See story, Page A19.] But the U.S. Supreme Court has already agreed to review the same question.
White House press secretary Scott McClellan said the ruling in the Padilla case is "troubling and flawed" and that the Bush administration will seek a stay. He suggested that the Justice Department would appeal the decision to the Supreme Court if necessary.
"Let's remember," McClellan said, "we're talking about an individual who was involved in seeking to do harm to the American people. And the president has repeatedly said that his most solemn obligation . . . is to protect the American people."
If the 2nd Circuit's decision is not stayed -- many expect it will not be -- the Justice Department apparently would face three choices. It could hold Padilla as a material witness, charge him with a crime or set him free.
"The pendulum is swinging back," said Elisa Massimino of the Lawyers Committee for Human Rights, which filed a brief in the case. "Even in a post-9/11 world, the president does not stand above the law and the Constitution."
Neal R. Sonnett, chairman of the American Bar Association's Task Force on Treatment of Enemy Combatants, stressed that he does not argue that Padilla, a former gang member who has served prison time for homicide, is necessarily innocent of conspiring with al Qaeda. The question, he said, is whether Bush and Defense Secretary Donald H. Rumsfeld have defined their war on terrorism so broadly as to blur constitutional distinctions.
"None of us want to see a dirty bomber walk free," Sonnett said. "But the government cannot declare that the entire world is a combat zone in which the Constitution doesn't apply."
Previously, the Court of Appeals for the 4th Circuit ratified the conditions under which another enemy combatant, Yaser Esam Hamdi, has been held. But Hamdi, who is also a U.S. citizen and is held in the same brig as Padilla, was captured on the battlefield in Afghanistan. The 2nd Circuit Court said in its ruling Thursday it was not addressing Hamdi's case.
Earlier this month, the Defense Department reversed course and announced it will provide Hamdi a lawyer because it has finished interrogating him.
Bush has designated as an enemy combatant one other person, Ali Saleh Kahlah Marri, a Bradley University graduate student accused of being an al Qaeda sleeper agent.
Padilla was captured at O'Hare International Airport on May 8, 2002, and was accused of scouting sites for the detonation of a radioactive bomb. He was brought to New York, where he was held as a material witness but never formally charged. A federal judge assigned him a lawyer, but three weeks later Bush designated Padilla an enemy combatant. He was taken to the military prison, where he remains.
The administration and its supporters have argued that al Qaeda presents a threat unique in American history, given the cataclysmic nature of its intent and the ability of sleeper agents to burrow deep into American society. The war zone, they say, cannot be restricted to nations far from U.S. borders.
Judge Richard C. Wesley, in his dissent, argued that Padilla must have access to a lawyer. But he also wrote that Congress in September 2001 gave Bush the power to prosecute the war and did not limit that zone to foreign soil.
"The court put great weight on the fact that he wasn't carrying an explosive device," said Ruth Wedgwood, a former federal prosecutor and a professor of international law at the John Hopkins School of Advanced International Studies. "But that isn't how al Qaeda does things.
"In the case of catastrophic terrorism," she said, "citizens of the United States have a human right not to be victims."
Frank J. Gaffney, president of the Center for Security Policy, predicted that Thursday's ruling could handcuff authorities.
"I worry that by giving them the status of criminal defendants . . . you establish a set of rights and prerogatives that I fear can be potentially helpful . . . [to] their campaigns in the United States," he said.
The federal appeals judges, however, addressed much the same questions while listening to oral arguments a month ago. In retrospect, their concern -- that federal courts were asked to change the rules that govern society -- foreshadowed Thursday's opinion.
The Justice Department has argued that wartime presidents often assert extraordinary powers, and that the Constitution anticipates this. In World War II, President Franklin D. Roosevelt declared seven captured German spies enemy combatants, even though one held U.S. citizenship. In the Civil War, President Abraham Lincoln detained thousands of men.
But the appellate judges Thursday rejected this argument. During the Civil War, the court stated, Lincoln stepped in where courts had ceased working. More to the point, the panel noted that only Congress can grant the president extraordinary expansion of powers.
Congress "understood that in times of war -- of serious national crisis -- military concerns prevailed," the court stated. But "absent express congressional authorization, the President's Commander-in-Chief powers do not support Padilla's case."
Except for Padilla himself, no one in this case has occupied a more curious position than his attorney, Donna Newman. Nineteen months ago, she sat down with her new client for more than 20 hours. She has not seen him since.
"I'm looking forward to a conference with him," she said. "And I won't have to wear a military uniform to meet my client, either."
© 2003 The Washington Post Company
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