Padilla’s detention upheld
on Sep 9, 2005 at 9:40 am
The Fourth Circuit ruled Friday that President Bush’s power to order the detention of suspected terrorists extends to seizures of U.S. citizens inside this country. The ruling against Jose Padilla is directly contrary to a victory Padilla won in the Second Circuit — a decision set aside for procedural reasons by the Supreme Court in 2004. As of now, therefore, there is no conflict in the Circuit Courts on the issue. Even so, the Padilla case seems likely to go on to the Supreme Court and to gain review there.
The decision in Hanft v. Padilla (Circuit docket 05-6396) is a significant victory for the Bush Administration in the war on terrorism because it extends to the homefront a power that the Supreme Court had upheld so far only when used to hold a citizen/terrorist suspect captured on a foreign battlefield. That is not a sufficient difference to help Padilla’s challenge to his designation as an “enemy combatant” and his resulting prolonged detention, the Circuit Court said. “We can discern no difference in principle” between a designated combatant captured abroad and inside the U.S., according to the opinion. “The locus of capture” is not decisive, it said.
The ruling, however, did not go as far as the Administration had asked. The Court did not rely upon the President’s claim that he has “inherent authority” as Commander in Chief to order the designation and detention of terrorist suspects. Rather, it relied only on the resolution Congress passed in the immediate aftermath of the terrorist attacks of Sept. 11, 2001, authorizing the President to respond. The Supreme Court similarly avoided the “inherent authority” claim when it upheld detention of citizens captured in foreign battle zones in its decision in Hamdi v. Rumsfeld — so far, the only other case of detention of a citizen named as an “enemy combatant.”
The Circuit Court commented: “Like Hamdi, Padilla associated with forces hostile to the United States in Afghanistan….And, like Hamdi, Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi….Because, like Hamdi, Padilla is an enemy combatant, and because his detention is no less necessary than was Hamdi’s in order to prevent his return to the battlefield, the President is authorized by the AUMF [Authorization for Use of Military Force Joint Resolution] to detain Padilla as a fundamental incident to the conduct of war.”
The panel also relied upon the Supreme Court’s 1942 decision in Ex parte Quirin, saying that decision had upheld the arrest and prosecution of a U.S. citizen who was a Nazi and thus an “unlawful enemy belligerent” during World War II.
The new Circuit Court ruling, decided unanimously by a three-judge panel on an expedited basis, was written by Circuit Judge J. Michael Luttig, often metnioned as a possible nominee to the Supreme Court. It was joined without additional comment by Circuit Judges M. Blane Michael and William B. Traxler, Jr.
The Circuit ruled that, while Padilla could not be detained indefinitely, he could be held captive as long as hostilities continue. It found that “the United States remains engaged in the conflict with Al Qaeda in Afghanistan,” and thus “Padilla’s detention has not exceeded in duration that authorized by the AUMF.”
On the key challenge raised by Padilla’s lawyers, the claim that his situation was different because he was taken inside the U.S., the Circuit Court said that detention of a combatant tied to Al Qaeda was necessary to prevent his return to the battlefield. That, it said, was the rationale used by the Supreme Court in the Hamdi case, and “this reasoning simply does not admit of a distinction between an enemy combatant captured abroad and detained in the United States, such as Hamdi, and an enemy combatant who escaped capture abroad but was ultimately captured domestically and detained in the United States, such as Padilla….Padilla poses the same threat of returning to the battlefield…”
Judge Luttig’s opinion also expressed significant deference to the President when he decides that criminal prosecution is not a sufficient alternative to detention of a terrorist suspect. The President need not order criminal prosecution when he has decided that would not achieve the wartime objective of preventing a return to battle, the opinion said.
The decison also read the 2001 resolution as “a clear statement” of Congress’ grant of authority to the President to detain suspects, including citizens captured in the U.S.
Padilla, who is being held in a military jail in South Carolina, has been in government custody for three years and four months. He was captured at O’Hare Airport in Chicago upon returning to the U.S. from Padkistan. The government contends that he reentered the country with the aim of blowing up apartment buildings with a radioactive bomb. He has been charged with no crime, civilian or military.
Padilla’s attorneys have 45 days to ask the full Circuit Court for en banc review, or 90 days to seek Supreme Court review.
(Thanks to Howard Bashman of How Appealing blog for his usual swiftness in reporting the ruling, and to Richard Samp of Washington Legal Foundation for an alert.)
