by Gail Appleson / Reuters –
NEW YORK (Reuters) – The president of the United States does not have the power to detain an American citizen seized on US soil as an enemy combatant, a federal appeals court ruled on Thursday, in a serious setback to the Bush administration’s war on terror.
The US Second Circuit Court of Appeals, in a 2-1 ruling, said only the US 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.
The court said that the government can transfer Padilla, a US 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 US citizens captured on US 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 US citizen without rights indefinitely.”
The US Supreme Court has not yet decided whether to hear another US 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 US 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 US 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 US mainland but also in Guantanamo Bay and elsewhere.”