Power and Law: A New Ruling in the Padilla Case

By JOANNE MARINER
Wednesday, Mar. 02, 2005

As shaped by men like Defense Secretary Donald Rumsfeld and justified by some (now notoriously) inventive lawyers, the Bush Administration's approach to fighting terrorism can be summarized in a phrase: the president's inherent power. A series of legal memoranda drafted by government counsel argue that the president possesses inherent authority to have people detained without charge, interrogated mercilessly, and kept in a legal limbo for unlimited lengths of time.

But while these lawyers focus on the Constitution's grant of power to the president as Commander in Chief, they ignore constitutional principles like the separation of powers and the concept of individual rights. They also disregard an entire body of statutory law that sets limits on the government's power to detain, question, and prosecute people suspected of wrongdoing.

In an important decision issued Monday in the case of so-called enemy combatant José Padilla, a U.S. district court judge in South Carolina rejected the government's approach. His ruling, rather than deferring to the government's broad claims, directs the reader's attention to the letter of the law.

In a relatively succinct opinion, Judge Henry F. Floyd touches on separation of powers principles, the difference between battlefields and civilian settings, and - in a couple of brief but compelling references -- underlying civil liberties concerns. But the linchpin of his ruling is the Non-Detention Act, a federal statute passed in 1971.

"No citizen," that law provides, "shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

An Imprisoned Citizen

José Padilla is an American citizen, born in Brooklyn, New York. He has been detained by the government since May 2002, for the first few weeks on a material witness warrant, and then as a so-called enemy combatant in naval detention. Federal authorities, most notably then-Attorney General John Ashcroft, have alleged that Padilla is implicated in terrorist activities, but have brought no charges against him.

Although since the September 11th terrorist attacks, the government has captured hundreds of people and declared them to be "enemy combatants," Padilla is one of only two such designees to have been arrested and detained on U.S. territory. (The other is Ali Saleh Kahlah al-Marri, a student from Qatar who was arrested in Peoria, Illinois, in 2001 and labeled an enemy combatant in 2003.) That Padilla is also an American citizen makes his case of even greater public interest.

Padilla's habeas corpus petition was originally filed in the Southern District of New York, where he had been held as a material witness. After a series of rulings, including one by the U.S. Court of Appeals for the Second Circuit whose reasoning essentially mirrors the ruling issued Monday, the case reached the Supreme Court.

Rather than address Padilla's petition on the merits, the Court dismissed it on technical grounds, concluding that it was filed in the wrong federal judicial district. Within days of the Court's ruling, Padilla's lawyers had refiled his case in South Carolina, in the federal district that the Court had indicated was appropriate.

Detention Only Pursuant to Law

Padilla, Judge Floyd noted, is a citizen, and thus under the Non-Detention Act, he can only be imprisoned by the federal government pursuant to an act of Congress. Unless a congressional enactment authorizes the detention, he should be released.

The Joint Resolution for Authorization for Use of Military Force, passed in the wake of September 11, was offered up by the government as authorization for Padilla's detention. But the language of the resolution refers to the use of "necessary and appropriate force," hardly appropriate to a domestic arrest. Quoting the Second Circuit's earlier opinion with approval, Judge Floyd concludes that while the resolution may authorize the detention of those who are captured on a battlefield, it has no bearing on Padilla's case.

Judge Floyd does point out, in a paragraph of pure dicta, that if the government believes that suspected terrorists should be preventively detained, it should request Congress to pass new legislation. In fact, although Judge Floyd may not be aware of the provision, Congress passed such a law in the aftermath of September 11, but it only applies to foreign nationals.

Although the Justice Department had sought legislation that would permit it to detain suspected terrorists indefinitely, Congress refused to sanction such unprecedented powers. Instead, in the USA PATRIOT Act, Congress gave the government the power to keep aliens who were certified as suspected terrorists in custody for seven days without charge. At the end of this period, the attorney general must charge the person with a crime, initiate deportation proceedings, or allow the person's release.

And since that time, other bills have been drafted that would allow some form of preventive detention, but none as draconian as the government's preferred approach. The proposed Detention of Enemy Combatants Act, introduced in the House of Representatives during Congress's last session, would allow detention for a renewable period of 180 days. Notably, the so-called enemy combatant would be allowed to challenge his or her detention via habeas corpus, and would enjoy the right of counsel.

Power not Legality

Preventive detention is a bad idea, inconsistent with constitutional principles. But the Bush Administration, in detaining Padilla and others, has made a bad idea much worse. Its form of preventive detention was never subject to congressional debate, has no temporal limits, and is unconstrained by due process protections.

It is raw power, pure and simple, and it is being exercised on a human being. The court was right to stop it.


Joanne Mariner is a human rights attorney. Her previous columns on thePadilla case, the other detainee cases, and the "war on terrorism" are available in FindLaw's archive.

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