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Sept 05 court gives bush right to detain without charges { September 10 2005 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2005/09/10/politics/10padilla.htmlHe said it was a "a sad day for the nation when a federal court finds the president has the power to detain indefinitely and without criminal charge any American citizen whom he deems an enemy combatant."
http://www.nytimes.com/2005/09/10/politics/10padilla.html
September 10, 2005
Court Gives Bush Right to Detain U.S. Combatant
By NEIL A. LEWIS
WASHINGTON, Sept. 9 - A three-judge federal appeals court panel ruled unanimously on Friday that President Bush had the authority to detain as an enemy combatant an American citizen who fought United States forces on foreign soil.
The panel of the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., threw out a ruling by a trial judge in South Carolina that Mr. Bush had overstepped his bounds by detaining Jose Padilla, a Chicago native, for three years.
The military has asserted that Mr. Padilla (pronounced pa-DILL-uh) was an operative of Al Qaeda who fought in Afghanistan, was trained by Khalid Sheikh Mohammed, a planner of the Sept. 11 attacks, and was considering various terrorist plots in the United States. Law enforcement authorities have also identified Mr. Padilla as a former gang member in Chicago who converted to Islam.
In an opinion written by Judge J. Michael Luttig, who has been considered by President Bush for a nomination to the Supreme Court, the panel said Mr. Bush had the right to detain Mr. Padilla as an enemy combatant under the powers granted the president by Congress after the Sept. 11 terrorist attacks in New York and at the Pentagon.
"The exceedingly important question before us is whether the president of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with Al Qaeda, an entity with which the United States is at war," Judge Luttig wrote. "We conclude that the president does possess such authority," citing the Congressional authorization.
Joining Judge Luttig in the ruling were Judges M. Blane Michael and William B. Traxler Jr.
Although Mr. Padilla lost his challenge to being detained, his situation is vastly different today than when he first came to public attention after his arrest at O'Hare International Airport on May 8, 2002.
For one thing, the government no longer presents as the main charge against him that he had intended to set off a "dirty bomb" that would spew radiation in some American city. Instead, as his case made its way through the court system for the second time, the government all but eliminated that accusation, saying he may have been planning to use gas lines to destroy apartment buildings.
Government lawyers argued that the main new reason he should be detained as an enemy combatant was that he fought American forces in Afghanistan alongside Qaeda colleagues. Another difference is that all parties, even the Bush administration, appear to accept that Mr. Padilla is entitled to some kind of hearing at which he could contest the accusations against him.
Both changes are the results of the altered legal landscape that followed the Supreme Court's rulings on June 28, 2004, when the justices considered a set of challenges to the administration's legal strategy to detain suspected terrorists.
In those cases, the justices ruled that a person who appeared to also be an American citizen, Yaser Esam Hamdi, could be detained by President Bush as an enemy combatant because he was purportedly captured while fighting in Afghanistan. But the court also said he was entitled under the Constitution to contest the allegations made against him by "a neutral decision maker."
The court declined to rule that day on Mr. Padilla's case, saying that his challenge to detention had been wrongly filed in New York federal court rather than in South Carolina, where he was being held in a Navy brig.
In his ruling, Judge Luttig cited the Supreme Court ruling in the Hamdi case repeatedly. For their part, government lawyers tailored their most recent affidavits regarding Mr. Padilla's offenses to more closely resemble those attributed to Mr. Hamdi, notably fighting American forces in Afghanistan.
The appeals court ruling did not directly address the issue of what kind of hearing Mr. Padilla is entitled to, but that is almost certain to be the subject of another round of litigation. Mr. Hamdi was sent back to his home country, Saudi Arabia, before that issue was resolved.
Jonathan M. Freiman, a New Haven lawyer who represents Mr. Padilla, said that he would appeal Friday's ruling. He said it was a "a sad day for the nation when a federal court finds the president has the power to detain indefinitely and without criminal charge any American citizen whom he deems an enemy combatant."
Mr. Freiman said the only fair hearing for Mr. Padilla would be a trial in an American civilian court. But Justice Sandra Day O'Connor, in her controlling opinion in the Hamdi case, wrote that some kind of military tribunal with rules of evidence more favorable to the prosecution than in civil courts might suffice for Mr. Hamdi.
Attorney General Alberto R. Gonzales said in a statement on Friday that he was pleased that the appeals court "has reaffirmed the president's critical authority to detain enemy combatants who take up arms on behalf of Al Qaeda and travel to the United States to kill innocent Americans. "
"As the court noted today,' Mr. Gonzales continued, "the authority to detain enemy combatants like Mr. Padilla plays an important role in protecting American citizens from the very kind of savage attack that took place almost four years ago to the day."
Prof. Neal Katyal of the Georgetown University Law School, who is challenging the government in a case involving another detainee, said he believed that the appeals ruling was fair.
"It's a quite reasonable interpretation given the facts as presented," Professor Katyal said.
Copyright 2005 The New York Times Company
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