Breaking News

Jose Padilla ordered released — or charged

This is a followup to the Supreme Court’s rulings on June 28, 2004, in Rumsfeld v. Padilla and Hamdi v. Rumsfeld.

A federal judge in South Carolina, rejecting President Bush’s broadest claims of war powers, on Monday ordered the release of Jose Padilla, a U.S. citizen who has been held for 33 months as an “enemy combatant.” U.S. District Judge Henry F. Floyd also ruled, however, that the federal government could avoid releasing Padilla if it filed criminal charges against him, or acted to hold him as “a material witness.” Judge Floyd’s 23-page ruling can be found here..

The power to suspend the writ of habeas corpus, Judge Floyd ruled, “belongs solely to Congress,” under the Constitution. “Since Congress has not acted to suspend the writ, and neither the President nor this Court have the authority to do so,” Padilla must be released. “It is true that there may be times during which it is necessary to give the Executive Branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else — not the Court and not the President…Simply stated, this is a law enforcement matter, not a military matter.”

This marks the second time that a federal court has found that President Bush lacked constitutional authority to hold a U.S. citizen as an “enemy combatant” for an indefinite period, without legal rights and without any criminal charges filed. The Second Circuit did so in 2003 in an earlier phase of Padilla’s case, but that ruling was set aside when the Supreme Court ruled last June that Padilla had filed his habeas challenge in the wrong court. The case was shifted to South Carolina, and Padilla filed a new habeas petition. He is being held in Charleston, S.C., in a U.S. Naval brig.

Judge Floyd, nominated to U.S. District Court by President Bush in May 2003, has been on the bench since September of that year. His ruling Monday was issued in Spartanburg, S.C.


The judge rejected the Justice Department argument that the Supreme Court’s June 28 decision in Hamdi v. Rumsfeld — another case involving a U.S. citizen held as an enemy combatant — supported detention of Padilla. The Hamdi case, the judge noted, involved a citizen captured in a foreign combat zone; Padilla was arrested in Chicago, at O’Hare Airport.

“The President’s use of force to capture Mr. Hamdi was necessary and appropriate,” according to Judge Floyd. “Here, that same use of force was not….[Padilla] was captured in the United States. His alleged terrorist plans were thwarted at the time of his arrest. There were no impediments whatsoever to the Government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing.”

Padilla, after his capture at O’Hare on May 8, 2002, when he was returning from Pakistan, was held as a material witness. The government contended that he was planning to release a radioactive “dirty bomb” in the U.S. Padilla challenged the material witness warrant, but on June 9, President Bush ordered the Pentagon to designate Padilla as an “enemy combatant.” At that point, Padilla was taken into military custody, where he has remained ever since.

In his ruling, Judge Floyd rejected the Justice Department’s reliance, not only on the Hamdi decision, but also on the post-9/11 congressional authorization of force, and on the Supreme Court’s ruling in Ex parte Quirin in 1942. Further, the judge turned aside the government argument that the federal Non-Detention Act — barring detention of any citizen without approval by Congress — did not apply to enemy combatants.

Finally, Floyd rejected the government’s most sweeping argument — that President Bush had “inherent authority,” acting alone, to order Padilla held as an enemy combatant. The government did not cite any law, and Floyd said he had found none, “that supports the contention that the President enjoys the inherent authority pursuant to which he claims to hold [Padilla].” If the President’s position were accepted, the judge said, that would “offend the rule of law and violate this country’s constitutional tradition,” as well as being “a betrayal of this nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.”

If the President believes existing law is insufficient to enable him to order such detentions, the judge noted, “then the President should prevail upon Congress to remedy the problem.”

The judge ordered Padilla released from custody within 45 days from Monday, but he added in a footnote; “Of course, if appropriate, the Government can bring criminal charges against [Padilla] or it can hold him as a material witness.”

Yaser Esam Hamdi, the only other U.S. citizen designated an enemy combatant during the war on terrorism, was released last October and was sent to Saudi Arabia; he also holds Saudi citizenship, but was born in the U.S. He was never charged with a crime by U.S. authorities.