On May 15, 2002, Jose Padilla, a U.S. citizen, was arrested at an airport in Chicago and detained as a "material witness" to the 9/11 terrorist attacks. Three weeks later, on June 9, President Bush signed an order directing Padilla to be removed from civilian courts and detained by the military as an "enemy combatant." The preface of the president's order asserts that the action was "in accordance with the Constitution and consistent with the laws of the United States."
The next day, Attorney General John Ashcroft broadcast a dramatic statement from Moscow, where he was traveling at the time. Ashcroft – referring to Padilla as Abdullah Al Muhajir – said that the United States had "disrupted an unfolding terrorist plot" to launch a radiological "dirty bomb" in the U.S. that could have caused "mass death and injury." Ashcroft assured his listeners that "we have acted with legal authority both under the laws of war and clear Supreme Court precedent."
Two days later White House officials disclosed that Padilla was alleged only to be in the initial planning stages of an attack, which consisted primarily of surfing the Internet. Nevertheless, since June 2002, Padilla has been held on a Naval Brig in South Carolina and has not been permitted to communicate with his lawyer, his family or anyone else. His lawyer, Donna Newman, was told she could write to Padilla but that Padilla might not receive correspondence. Padilla has never been charged with any crime.
In December, the federal district court ruled that the president has the authority to detain Padilla as an enemy combatant, but that Padilla is entitled to consult with counsel and to present facts to rebut the government’s case against him.
Today, in a stinging repudiation of the administration's position, the United States Court of Appeals for the Second Circuit found that Padilla's detention is unconstitutional. The court wrote: “the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat" The court also found that the president lacked statutory authority to detain Padilla. The court ordered Secretary of Defense Donald Rumsfeld to "release Padilla from military custody within 30 days."
The Second Circuit ruling was, to be certain, an important and dramatic victory on behalf of all those who value the fundamental protections granted under the Constitution. But there is much work left to be done. White House Press Secretary Scott McClellan has already announced that the government, apparently unbowed by the ruling, will seek an immediate stay. Instead of expending more time and effort denying Padilla his constitutional rights, the administration should use the decision as an opportunity to reconsider its approach and begin to take due process rights seriously. Specifically, the administration should
• stop threatening defendants in civilian court with the enemy combatant label to gain a strategic advantage.
• create fair and humane procedures for all persons detained in Guantanamo Bay, Cuba – not negotiate improved procedures on an ad hoc basis for citizens of favored countries.
• provide Yassir Hamdi, a U.S. citizen apprehended outside the U.S. who is currently being held as an enemy combatant, with a hearing before a competent tribunal to determine the appropriateness of his status. (On December 2, the government finally agreed to allow Mr. Hamdi to speak with his lawyer. While today’s decision does not address the question of whether a citizen apprehended abroad may be detained as an enemy combatant, he should at least be granted the opportunity to respond to the government’s evidence against him.)
For more information on these and other civil liberties issues see the American Progress report: Strengthening America by Defending Our Liberties.