President Bush does not have power to detain a U.S. citizen seized on U.S. soil as an enemy combatant, a federal appeals court ruled Thursday in a decision that could force a man held in a “dirty bomb” plot to be tried in civilian courts.
In a 2-to-1 ruling, a three-judge panel of the 2nd U.S. Circuit Court of Appeals said that the detention of Jose Padilla was not authorized by Congress and that Bush could not designate Padilla as an enemy combatant without the authorization.
Padilla is accused of plotting to detonate a “dirty bomb,” which uses conventional explosives to disperse radioactive materials. The former Chicago gang member was arrested in May 2002 and within days was moved to a naval brig in Charleston, S.C.
“As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation,” the court said.
“But 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,” it added.
Can be transferred to civilian court
The court directed Defense Secretary Donald Rumsfeld to release Padilla from military custody within 30 days, but it said the government was free to transfer him to civilian authorities, who could bring criminal charges.
If appropriate, Padilla could also be held as a material witness in connection with grand jury proceedings, the court said.
In a dissenting opinion, Judge Richard C. Wesley said 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 White House said the ruling was inconsistent with the president’s constitutional authority, as well as with other court rulings.
“The president’s most solemn obligation is protecting the American people,” White House press secretary Scott McClellan said Thursday. “We believe the 2nd Circuit ruling is troubling and flawed. The president has directed the Justice Department to seek a stay and further judicial review.”
Padilla’s lawyer, Donna Newman, told MSNBC TV that the ruling was "a big victory for the American people" because it upheld the rights of every citizen to confront his or her accuser in a court of law.
Newman has battled in court to be able to meet with Padilla; she has not done so since he was designated an enemy combatant the month after he was arrested.
‘Repudiation’ of administration policy
Chris Dunn, a staff attorney with the New York Civil Liberties Union, called the ruling “historic.”
“It’s a repudiation of the Bush administration’s attempt to close the federal courts to those accused of terrorism,” he said. The group had submitted a legal brief supporting Padilla.
“It’s right on the money,” said Barbara Olshansky, deputy legal director of the Center for Constitutional Rights, which argued in court papers that Bush lacked authority.
Only two other people have been designated enemy combatants since the Sept. 11, 2001, terrorist attacks: Ali Saleh Kahlah Al-Marri, a citizen of Qatar who has been accused of being an al-Qaida sleeper agent, and Esam Hamdi, a Louisiana native captured during the fighting in Afghanistan.
In its ruling, the court said it was not addressing the detention of any U.S. citizens seized within a combat zone in Afghanistan.