Court: President cannot detain U.S. citizen as enemy combatant
Thursday, December 18, 2003 Posted: 2:06 PM EST 


NEW YORK (CNN) -- In a setback to the Bush administration's anti-terrorism policies, a federal appeals court ruled Thursday that the president does not have the power to 
detain an American citizen seized on U.S. soil as an enemy combatant. 

In a 65-page decision, a three-judge panel of the 2nd U.S. Circuit Court of 
Appeals voted 2-1 that the U.S. government must release Jose Padilla 
from military custody within 30 days. 

If appropriate, Padilla also can be held as a material witness in connection 
with grand jury proceedings, the court said. 

"The government can transfer Padilla to appropriate civilian authorities 
who can bring criminal charges against him," the order said. 

Padilla has been held in a South Carolina naval brig for the past year and 
a half. 
"It's reassuring that constitutional protections that we are all entitled to as 
citizens were confirmed. And we look forward to meeting our client," said 
attorney Donna Newman. 

The U.S. government could ask for a stay of the order or ask the full panel 
of the appeals court to hear the case. 

In November, the appeals court panel cast doubt Monday on whether the 
Bush administration had the authority to designate Padilla an "enemy 
combatant" and detain him indefinitely without criminal charges.  

Some legal analysts have said the Padilla case may eventually head to 
the Supreme Court. The government has maintained that Bush's military 
moves in the war on terrorism were not subject to judicial review.   

Padilla, 33, accused of being an al Qaeda operative, has been in federal 
custody since he arrived in Chicago, Illinois, in May 2002 on a flight from 
Pakistan. He was initially arrested as a material witness for the grand jury 
probe into the September 11, 2001, terrorist attacks. 

A former gang member, Padilla is accused of plotting to detonate a "dirty 
bomb," which uses conventional explosives to disperse radioactive 
materials. The government said he had proposed the bomb plot to Abu 
Zubaydah, then al Qaeda's top terrorism coordinator. Zubaydah was 
arrested in Pakistan in March 2002. 

The government maintains Padilla received explosives training in al 
Qaeda camps inside Afghanistan and plotted with the group to bomb 
hotels and gas stations, and to detonate a radioactive "dirty bomb" -- a 
conventional explosive laced with radioactive material -- inside the United 
States. 

Defense attorneys maintain Padilla traveled to Chicago to visit his son. 
The government never levied criminal charges against Padilla before 
President Bush declared in June 2002 that he represented a "grave 
danger to the national security" of the nation, reclassifying him as an 
enemy combatant, and transferring him to military custody, where he has 
remained incommunicado. 

"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 Qaeda 
poses to our country and of the responsibilities the president and law 
enforcement officials bear for protecting the nation," the court said in its 
majority opinion. 

"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. 


In a dissenting opinion, District 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." 

Marvin Smilon, a spokesman for interim U.S. Attorney David Kelley, said 
he could not comment, The Associated Press reported. In Washington, 
Justice Department spokesman Mark Corallo said the agency was 
reviewing the decision. 

Chris Dunn, a staff attorney with the New York Civil Liberties Union, called 
the ruling "historic," according to The Associated Press. 

"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. 

Two other people have been designated enemy combatants since the 
2001 terrorist attacks: Ali Saleh Kahlah Al-Marri, a citizen of Qatar who 
has been accused of being an al Qaeda sleeper agent, and Esam Hamdi, 
a Louisiana native captured during the fighting in Afghanistan. 

In its ruling Thursday, the court said it was not addressing the detention of 
any U.S. citizens seized within a zone of combat in Afghanistan, the AP 
reported.