It is some 820 miles from Chicago’s O’Hare Airport, where alleged al-Qaida ally Jose Padilla was arrested by FBI agents in May of 2002, to the Atlantic coast at Amagansett, N.Y., where, almost exactly 60 years earlier, Nazi saboteurs disembarked from a German submarine and landed on the beach in a rubber raft with four boxes of explosives and plans to destroy U.S. railroad lines and munitions plants.
Despite time and distance, the cases have important similarities.
The Nazi saboteurs had their day before a Supreme Court that ruled, in a historic decision called Ex parte Quirin, that enemy combatants, even if they include American citizens, as two of the saboteurs were, can be held by military authorities and do not have a right to have their case decided by civilian courts.
In a case to be argued Wednesday before the high court, the Bush administration will rely on the precedent established by Ex parte Quirin to try to convince the justices that two U.S. citizens, Padilla, caught at O’Hare, and Yaser Hamdi, who was captured on the battlefield in Afghanistan, should remain in Navy brigs and not be permitted to go before a federal judge to challenge the evidence the government has used to justify their detention.
The Bush administration says that it decided to hold Padilla and Hamdi as enemy combatants beyond the reach of civilian courts only after "a careful, thorough, and deliberative process consisting of several layers of review" by Justice Department, Defense Department and CIA officials.
Extraordinary new powers?
If the Bush administration loses, it could hinder investigations of al-Qaida plots; but if it wins, the president will have been given extraordinary power over American citizens.
Arguing for Padilla, Stanford University law professor Jenny Martinez, a former law clerk for Justice Stephen Breyer, will contend that the Bush administration’s position “is that for the foreseeable future, any citizen, anywhere, at any time, is subject to indefinite military detention based on the President’s determination that there is ‘some evidence’ he has associated with a terrorist organization with violent intent.”
She argues that the Quirin case ought not apply to Padilla since in 1942 the Supreme Court “reached its decision in the context of a traditional war between nation-states and simply had no occasion to address the questions that would be raised in the circumstances of a ‘war’ with a secret, non-state terrorist organization.”
Last week during the court’s oral argument over the case of foreign combatants held at the Guantanamo Naval base in Cuba, Martinez’s former mentor, Breyer, said he was “most worried” about allowing the executive branch to hold non-citizens without an opportunity for a hearing.
He, along with his allies Justices John Paul Stevens and Ruth Bader Ginsburg can be expected to be even more troubled by U.S. citizens being held by the military.
Chief Justice William Rehnquist, along with Justices Antonin Scalia and Clarence Thomas, is likely to be more receptive to the government’s view, which is that the Quirin precedent is binding for Padilla and Hamdi.
Lower court ruling
Ruling for Padilla, two federal appeals court judges in New York said last December that “clear congressional authorization is required for detentions of American citizens on American soil.”
Without such congressional authorization, Judges Rosemary Pooler and Barrington Parker Jr. said, the government had to prove that Padilla’s detention “can nonetheless be grounded in the President’s inherent constitutional powers.”
But Pooler and Parker said the Bush administration hadn’t made such a showing and therefore Padilla had to be released from military custody and given a hearing in a civilian court.
But Solicitor General Theodore Olson argues that the Pooler and Parker did not comprehend the nature of the war the United States is now engaged in.
“The authority of the Commander in Chief to engage and defeat the enemy encompasses the capture and detention of enemy combatants wherever found, including within the Nation’s borders,” Olson argues. “That is particularly true in the current conflict in view of the nature of the September 11 attacks, which were perpetrated by combatants who had assimilated into the civilian population and launched their attacks from within the United States.”
Given broad power to defeat al-Qaida by the September 2001 congressional authorization to wage war, Bush has decided that Padilla represents a grave danger to U.S. national security and that his detention is necessary to prevent him from aiding al-Qaida.
According to the government's affidavit, while in Afghanistan in 2001 Padilla met with met Osama bin Laden’s lieutenant Abu Zubaydah to discuss attacks on U.S. targets, including a plan to explode a radiological “dirty bomb.”
The government has filed its affidavit — based on intelligence information which hasn’t been made public— with the federal district judge who first heard Padilla’s case and with the appeals court, but Padilla and his lawyer haven’t been given an opportunity to try to disprove those statements.
A similar affidavit was filed in the Hamdi case.
Entitled to civil liberties?
As Franklin Roosevelt’s attorney general, Francis Biddle, did in the Quirin case in 1942, the Bush administration is arguing that individuals trying to attack the United States can hardly be in a position to claim constitutional rights “from the nation which they seek to destroy.”
The justices agreed to hear the Padilla and Hamdi cases partly because the appeals court in Padilla’s case had ruled that the military couldn’t hold him, while a Richmond, Va.-based appeals court in the Hamdi case ruled in January of 2003 that the military could hold him.
The U.S. Court of Appeals for the Fourth Circuit emphasized that Hamdi “was indisputably seized in an active combat zone abroad” and that it had no authority to look into the facts of his case because it might run the risk of “obstructing war efforts authorized by Congress and undertaken by the executive branch.”
In wartime, the Fourth Circuit court of appeals said, judges must “assume a deferential posture” in reviewing the president’s actions as commander in chief.
Despite similarities between the Padilla and Hamdi cases and that of the Nazi saboteurs, the Germans received more in the way of due process rights than Padilla and Hamdi have gotten so far.
Quick trial and execution
The Nazis were also tried quickly: the first group of saboteurs landed at Amagansett, N.Y. on June 13, 1942, the second group at Ponte Vedra, near Jacksonville, Fla. on June 17. When two of the Germans went to the FBI and revealed the plot, they were all rounded up. A military tribunal ordered by President Roosevelt started proceedings on July 8 and ended on Aug 3.
On Aug. 8, six of the eight were executed (the two who revealed the conspiracy were jailed for the duration of the war).
In contrast, Padilla and Hamdi have been imprisoned for two years without knowing when or if they will put on trial. President Bush's Nov. 13, 2001 order authorizing military commissions for those who aided attacks on the United States applies only to non-citizens, so Padilla and Hamdi would not be eligible.
Washington lawyer Bradford Berenson, who served as assistant White House counsel from 2001 to 2003, said “you can distinguish Quirin on its facts, since it took place after there had been a trial by a military commission. But legally speaking, the key point in Quirin, and the reason the government relies on it, is that Quirin validated the proposition that you could treat a U.S. citizen under military law.”
In 1942, Roosevelt was determined that the Nazi saboteurs not be allowed to use American civil liberties to escape the death penalty or long imprisonment.
“I won’t give them up,” Roosevelt told Biddle. “I won’t hand them over to any United States marshal armed with a writ of habeas corpus. Understand?”
Sixty-two years later, Bush is playing the FDR role, hoping for the same outcome: no freedom for the detainees and defeat of the enemy.