April 2005

Views expressed are those of the authors, not necessarily of the AFSC.

Court Rules Padilla Detention Unconstitutional

Luc Schuster is a Peacework intern and co-founder of the webzine, www.thequarterlife.org. [Editor's Note: Peacework maintains that human rights are universal and should not be limited to US citizens.]

Jose Padilla, otherwise known as Abdullah al-Muhajir, returned to Chicago from Pakistan on May 8, 2002, where he was summarily arrested on a material witness warrant and brought to New York. Instead of being charged or released, however, President Bush, on June 9, 2002, illegally ordered al-Muhajir held incommunicado, without charges, as an "enemy combatant." Al-Muhajir was then transferred to a military brig in South Carolina. No charges were brought against him, but the Bush Administration, in an attempt to explain this unprecedented move to the public, claimed that al-Muhajir was plotting to plant a "dirty bomb."

Donna Newman, al-Muhajir's court appointed attorney in New York, filed a writ of habeas corpus demanding his release. However, the Supreme Court ruled that the writ needed to be filed in South Carolina instead of in New York. The writ was finally adjudicated, and Judge Henry Floyd, a Bush appointee, issued a ruling in the case on February 28, 2005 (Padilla v. Hanft [Civil Action No. 2:04-2221-26-AJ]).

The Bush administration's ostensible legal basis for detaining al-Muhajir relied on three claims. First, Bush pointed to the phrase approving "all necessary and appropriate force" in the congressional Authorization for Use of Military Force (AUMF), passed one week after the September 11^th terrorist attacks. Bush's legal team argued this is a blank check authorizing the President to do anything he pleases in executing the "war on terrorism." Judge Floyd was not persuaded. He ruled that al-Muhajir's detention is in direct contradiction to the Non-Detention Act, which explicitly forbids citizen detentions without a congressional grant of action. Floyd found nothing in the AUMF to indicate that Congress thought it was authorizing citizen detentions.

The Bush administration, however, further pressed its claim of unilateral presidential power. The administration's lawyers argued that even if there is doubt over whether the AUMF authorizes the President to detain al-Muhajir, the President is granted this power simply because the President interprets the AUMF to do so. Judge Floyd responded to this claim with indignation:

"Certainly [the Bush administration] does not intend to argue here that, just because the President states that [al-Muhajir's] detention is "consistent with the laws of the United States, including the Authorization for Use of Military Force" that makes it so. Not only is such a statement in direct contravention to the well settled separation of powers doctrine, it is simply not the law. Moreover, such a statement is deeply troubling. If such a position were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenry's individual liberties."

In June 2004, the Supreme Court ruled in Hamdi v. Rumsfeld that even in a case where the accused citizen is detained on the battlefield, "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." Despite this, the administration still tried to invoke Hamdi as their second argument in support of their detention of al-Muhajir. Judge Floyd found Hamdi's battlefield capture to be an entirely different situation from al-Muhajir's arrest at Chicago's O'Hare airport, at which point al-Muhajir's alleged terrorist plans had been thwarted. There was nothing that necessitated expanded detention power beyond what was already provided for by the criminal justice system.

Judge Floyd concluded his exploration of the Hamdi case by schooling the Bush administration on the role of the executive branch alongside two other co-equal branches of government: "If the law in its current state is found by the President to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the President should prevail upon Congress to remedy the problem." In other words, the President is provided with the constitutional authority to enforce laws, not make them.

The Bush Administration's third legal pretext relied on the case of German soldiers captured in the US during World War II. The group of seven saboteurs was captured and tried by a military tribunal. One of these soldiers, Herbert Hans Haupt, was a US citizen. The court in Ex Parte Quirin found that Haupt's US citizenship was not sufficient to protect him from being tried in a military tribunal. Judge Floyd found unpersuasive the Bush administration's argument for application of Quirin to the al-Muhajir case for several compelling reasons: 1) In Quirin, the Court found that Congress had explicitly authorized military tribunals to try offenses against the law of war in appropriate cases. The current Congress did nothing to provide for a suspension of habeus corpus under al-Muhajir's circumstances. 2) "In Quirin, Haupt was charged with a crime and tried by a military tribunal. In [this] case, [al-Muhajir] has not been charged and has not been tried." 3) "Quirin involves a prisoner whose detention was punitive whereas Petitioner's detention is purportedly preventative." 4) "Quirin is concerned more with whether the petitioner was going to be tried by a military tribunal or a civilian court. The case at bar is concerned with whether [al-Muhajir] is going to be charged and tried at all." 5) "Quirin involved a war that had a definite ending date. The present war on terrorism does not." Floyd did not expand on this final reason for rejecting the application of Quirin, but the implication is fascinating, particularly coming from a Bush appointee. He seems to be saying that al-Muhajir's detention is particularly troublesome when considering the perpetual nature of the current "war on terrorism." Extreme suspensions of civil liberties must be reserved for clearly defined, short-term emergency protective measures, if they are ever appropriate at all. The everlasting "war on terrorism" does not fit this description.

Judge Floyd's sweeping decision calls the administration's detention of al-Muhajir offensive to the rule of law. The decision specifies that after spending the past two and a half years in a South Carolina Naval Brig, al-Muhajir must be charged for a crime within 45 days or be released.

Judge Floyd's ruling concludes by stating that to accept the Bush administration's baseless legal arguments "would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties." By rejecting the Bush administration's exercise of dictatorial powers, Floyd's ruling is an important affirmation of basic constitutional liberties.

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