US Cannot Hold Citizens as 'Combatants'

A federal appeals court ruled today that the Bush administration overstepped its authority by detaining Jose Padilla, a U.S. citizen seized in Chicago nine months after the bombing of the World Trade Center and locked up incommunicado as an "enemy combatant" for allegedly plotting to explode a "dirty bomb" in the United States.

The U.S. Court of Appeals for the 2nd Circuit, in a 2-1 decision, said the administration has no inherent constitutional power to sidestep the normal procedures required to imprison a U.S. citizen seized on American soil.

It also rejected the government's claim that it possessed legislative authority to lock up Padilla by virtue of the congressional joint resolution authorizing the war against Iraq.

The appellate panel said that the president's power as commander in chief does not override "the domestic rule of law." Congress and the courts, it said, cannot simply be bypassed.

The court ordered Padilla released within 30 days or, in the alternative, charged with something specific by the government under normal criminal procedures.

The Bush administration quickly criticized the ruling. "We believe the 2nd Circuit ruling is troubling and flawed," White House press secretary Scott McClellan told the Associated Press. "The president has directed the Justice Department to seek a stay, and further judicial review."

Despite the government's pledge of an appeal, the ruling was a significant defeat for the administration in its battles with civil liberties organizations over the extent of the president's powers during a war.

The decision does not apply to other controversial detainees with cases pending in the courts, such as that of Yaser Esam Hamdi, who were captured in Afghanistan on a battlefield. Padilla and Hamdi are the two U.S. citizens among more than 650 suspected "enemy combatants" seized in Afghanistan and elsewhere. Most of them are detained at the U.S. Navy base in Guantanamo Bay, Cuba.

Last month, the Supreme Court agreed to consider a challenge to the administration's authority to detain prisoners at Guantanamo Bay. A federal appeals court had ruled in the government's favor.

The FBI took Padilla into custody in May, 2002, when he arrived at O'Hare International Airport in Chicago. The agents at first served Padilla with a material witness warrant — alleging a connection with al Qaeda — and transported him to a federal detention center in New York City. On June 9, two days before a judge was to hear a court challenge to Padilla's detention, President Bush designated him as an "enemy combatant," relying, on two sources who told them that Padilla had met with al Qaeda members to hatch a plan to detonate a dirty bomb. Padilla was taken to a naval brig in South Carolina.

Donna Newman, a public defender appointed to represent Padilla in New York, pursued the case without being allowed to see Padilla, bringing the habeas corpus petition that produced today's ruling.

Appellate Judges Rosemary S. Pooler and Barrington D. Parker wrote for the panel.

"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 protecting the nation. 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 here, to share them with Congress."

Contrary to the government's argument, they said, the president does not have "inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat."

While considerable "deference" must be given to the president's authority, the court said the deference does not include allowing him to sidestep the federal courts and the Congress.

Indeed, it said, "separation of powers concerns are heightened when the Commander-in-Chief's powers are exercised in the domestic sphere."

The panel rejected the administration's argument that a 1942 Supreme Court case involving the military tribunals during World War II supported the government's position.

Conceivably, but not necessarily, the Congress might have the authority to enact a law allowing detentions such as Padilla's, the panel said.

But Congress has not passed such legislation. Nor can the authority be found in other acts of Congress, such as the joint resolution authorizing the war in Iraq.

"We would need to find specific statutory authorization in order to uphold the detention," the panel said.

" ... We disagree with the assumption that the authority to use military force ... includes the authority to detain American citizens seized on American soil and not actively engaged in combat."

Judge Richard C. Wesley dissented. "In my view," he wrote, "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."