The Jose Padilla Case

Jose Padilla is a U. S. citizen, arrested in Chicago in May, 2002. He was held as a material witness, and then transferred to a military brig in South Carolina, designated by President as an “enemy combatant.” He is held in solitary confinement, without any criminal charge, and without access to a lawyer. We have excerpts from two court decisions about his case. The District Court decided that he could be held but gave him access to a lawyer, with the possibility that he might be released in the future by a writ of habeas corpus. The Court of Appeals decided that he could not be held and ordered him to be released. This order was appealed to the Supreme Court by the government. Oral arguments were held in April, 2004.

Excerpts Included Here From: (a) District Court opinion, Appeals Court opinion, Padilla’s Argument that the Supreme Court should not review the Appeals Court decision. Most legal citations are omitted.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF NEW YORK

JOSE PADILLA, BY DONNA R. NEWMAN, AS NEXT FRIEND, PETITIONER

DONALD RUMSFELD, RESPONDENT

Dec. 4, 2002

OPINION AND ORDER

MUKASEY, District Judge.

Petitioner in this case, Jose Padilla, was arrested on May 8, 2002, in Chicago, on a material witness warrant issued by this court pursuant to 18 U.S.C. § 3144 to enforce a subpoena to secure Padilla’s testimony before a grand jury in this District. His arrest and initial detention were carried out by the U.S. Department of Justice. As the result of events described below—including the President’s designation of Padilla as an enemy combatant associated with a terrorist network called al Qaeda—Padilla is now detained, without formal charges against him or the prospect of release after the giving of testimony before a grand jury, in the custody of the U.S. Department of Defense at the Consolidated Naval Brig in Charleston, South Carolina.

Through his attorney, Donna R. Newman, acting as next friend, Padilla has petitioned pursuant to 28 U.S.C. § 2241, seeking relief in the nature of habeas corpus, challenging the lawfulness of his detention, and seeking an order directing that he be permitted to consult with counsel. He has named as respondents President George W. Bush, Secretary of Defense Donald Rumsfeld, and Commander M.A. Marr, the officer in charge of the brig where he is detained. The government has moved to dismiss the petition on several grounds, including that Newman lacks standing necessary to establish next friend status, and that this court lacks personal jurisdiction over any proper respondent, and over all of those named as respondents.

Alternatively, the government moves to transfer the case to the District of South Carolina, where Padilla is held. As to the merits, the government argues that the lawfulness of Padilla’s custody is established by documents already before this court. Padilla argues that the President lacks the authority to detain him under the circumstances present here, including that he is a United States citizen arrested in the United States, and that in any event he must be permitted to consult with counsel. The government has submitted a classified document in camera to be used, if necessary, in aid of deciding whether there exists evidence to justify the order directing that Padilla be detained.

For the reasons set forth below, the parties’ applications and motions are resolved as follows: (i) Newman may pursue this petition as next friend to Padilla, and the government’s motion to dismiss for lack of standing therefore is denied; (ii) Secretary Rumsfeld is the proper respondent in this case, and this court has jurisdiction over him, as well as jurisdiction to hear this case, and the government’s motion to dismiss for lack of jurisdiction, or to transfer to South Carolina, is denied; (iii) the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla’s detention is not per se unlawful; (iv) Padilla may consult with counsel in aid of pursuing this petition, under conditions that will minimize the likelihood that he can use his lawyers as unwilling intermediaries for the transmission of information to others and may, if he chooses, submit facts and argument to the court in aid of his petition; (v) to resolve the issue of whether Padilla was lawfully detained on the facts present here, the court will examine only whether the President had some evidence to support his finding that Padilla was an enemy combatant, and whether that evidence has been mooted by events subsequent to his detention; the court will not at this time use the document submitted in camera to determine whether the government has met that standard.

I. FACTUAL BACKGROUND

The immediate factual and legal predicate for this case lies in the September 11, 2001 attacks on this country, and the government’s response. On that date, as is well known, 19 terrorists associated with an organization called al Qaeda hijacked four airplanes, and succeeded in crashing three of them into public buildings they had targeted—one into each of the two towers of the World Trade Center in New York, and one into the Pentagon near Washington, D.C. The World Trade Center towers were destroyed and the Pentagon was seriously damaged. Passengers on the fourth airplane sought to overpower the hijackers, and in so doing prevented that airplane from being similarly used, although it too crashed, in a field in Pennsylvania, and all aboard were killed. In all, more than 3,000 people were killed in that day’s coordinated attacks.

On September 14, 2001, by reason of those attacks, the President declared a state of national emergency. On September 18, 2001, Congress passed Public Law 107-40, in the form of a joint resolution that took note of “acts of treacherous violence committed against the United States and its citizens,” of the danger such acts posed to the nation’s security and foreign policy, and of the President’s authority to deter and prevent “acts of international terrorism against the United States.” The resolution, entitled “Authorization for Use of Military Force,” (the “Joint Resolution”) then provided as follows:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.

As the term “Public Law” connotes, the President signed the Joint Resolution.

On November 13, 2001, the President signed an order directing that persons whom he determines to be members of al Qaeda, or other persons who have helped or agreed to commit acts of terrorism aimed at this country, or harbored such persons, and who are not United States citizens, will be subject to trial before military tribunals, and will not have recourse to any other tribunal, including the federal and state courts of this country. He specifically cited the Joint Resolution in the preamble to that order.

As previously noted, on May 8, 2002, this court, acting on an application by the Justice Department pursuant to 18 U.S.C. § 3144,4 based on facts set forth in the affidavit of Joseph Ennis, a special agent of the FBI, found that Padilla appeared to have knowledge of facts relevant to a grand jury investigation into the September 11 attacks. That investigation included an ongoing inquiry into the activities of al Qaeda, an organization believed to be responsible for the September 11 attacks, among others, and to be committed to and involved in planning further attacks. On May 15, 2002, following Padilla’s removal from Chicago to New York, where he was detained in the custody of the Justice Department at the Metropolitan Correctional Center (“MCC”), he appeared before this court, and Donna R. Newman, Esq. was appointed to represent him. After Newman had conferred with Padilla at the MCC, and following another court appearance on May 22, 2002, Padilla, represented by Newman, moved to vacate the warrant. The motion to vacate the warrant included an affirmation from Padilla obviously drafted by Newman, albeit one that did not discuss any issue relating to the likelihood that he had information material to a grand jury investigation. The motion was fully submitted for decision by June 7.

However, on June 9, 2002, the government notified the court ex parte that it was withdrawing the subpoena. Pursuant to the government’s request, the court signed an order vacating the warrant. At that time, the government disclosed that the President had designated Padilla an enemy combatant, on grounds discussed more fully below, and directed the Secretary of Defense, respondent Donald Rumsfeld, to detain Padilla. The government disclosed to the court as well that the Department of Defense would take custody of Padilla forthwith, and transfer him to South Carolina, as in fact happened.

On June 11, 2002, Newman and the government appeared before this court at the time a conference had been scheduled in connection with Padilla’s then pending motion to vacate the material witness warrant.

At that time, Newman filed a habeas corpus petition pursuant to 28 U.S.C. § 2241, later to be amended. In response to an inquiry from the court, the government conceded that after the June 9 Order was signed, Department of Defense personnel took custody of Padilla in this district. Newman’s petition alleges the facts surrounding Padilla’s initial capture and transfer to New York, Newman’s activities in connection with representing him, proceedings relating to his motion to vacate the material witness warrant, and his subsequent transfer to South Carolina. Newman has averred that she was told she would not be permitted to visit Padilla at the South Carolina facility, or to speak with him; she was told she could write to Padilla, but that he might not receive the correspondence. In addition to having submitted the above-mentioned affirmation from Padilla in connection with the motion to vacate the material witness warrant, according to the amended petition, it appears that Newman consulted not only with Padilla but also with his family.

No criminal charges have been filed against Padilla.

The President’s order, dated June 9, 2002 (the “June 9 Order”), is attached, in redacted form, to the government’s dismissal motion, and sets forth in summary fashion the President’s findings with respect to Padilla. Attached as well is a declaration of Michael H. Mobbs (“Mobbs Declaration”), who is employed by the Department of Defense. The Mobbs Declaration sets forth a redacted version of facts provided to the President as the basis for the conclusions set forth in the June 9 Order. In addition to the redacted summary contained in the Mobbs Declaration, the government has submitted, under seal, an unredacted version of information provided to the President (“Sealed Mobbs Declaration”).

As set forth more fully below, the government has argued that the Mobbs Declaration is sufficient to establish the correctness of the President’s findings contained in the June 9 Order, although it has made the Sealed Mobbs Declaration available to the court to remedy any perceived insufficiency in the Mobbs Declaration. However, the government has maintained that the Sealed Mobbs Declaration must remain confidential.

The government has taken the position that it would withdraw the Sealed Mobbs Declaration sooner than disclose its contents to defense counsel.

The June 9 Order is addressed to the Secretary of Defense, and includes seven numbered paragraphs setting forth the President’s conclusion that Padilla is an enemy combatant, and, in summary form, the basis for that conclusion, including that Padilla: is “closely associated with al Qaeda,” engaged in “hostile and warlike acts” including “preparation for acts of international terrorism” directed at this country, possesses information that would be helpful in preventing al Qaeda attacks, and represents “a continuing, present and grave danger to the national security of the United States.” In addition, the June 9 Order directs Secretary Rumsfeld to detain Padilla.

The Mobbs Declaration states that Padilla was born in New York and convicted in Chicago, before he turned 18, of murder. Released from prison after he turned 18, Padilla was convicted in Florida in 1991 of a weapons charge. After his release from prison on that charge, Padilla moved to Egypt, took the name Abdullah al Muhajir, and is alleged to have traveled also to Saudi Arabia and Afghanistan.

In 2001, while in Afghanistan, Padilla is alleged to have approached “senior Usama Bin Laden lieutenant Abu Zubaydeh” and proposed, among other things, stealing radioactive material within the United States so as to build, and detonate a “ ‘radiological dispersal device’ (also known as a ‘dirty bomb’) within the United States.” Padilla is alleged to have done research on such a project at an al Qaeda safehouse in Lahore, Pakistan, and to have discussed that and other proposals for terrorist acts within the United States with al Qaeda officials he met in Karachi, Pakistan, on a trip he made at the behest of Abu Zubaydah.

One of the unnamed confidential sources referred to in the Mobbs Declaration said he did not believe Padilla was actually a member of al Qaeda, but Mobbs emphasizes that Padilla had “extended contacts with senior Al Qaeda members and operatives” and that he “acted under the direction of [Abu] Zubaydah and other senior Al Qaeda operatives, received training from Al Qaeda operatives in furtherance of terrorist activities, and was sent to the United States to conduct reconnaissance and/or conduct other attacks on their behalf.”

As mentioned above, Padilla was taken into custody on the material witness warrant on May 8, in Chicago, where he landed after traveling, with one or more stops, from Pakistan. Dealing with the contents of the Sealed Mobbs Declaration is problematic. Padilla argues that I should not consider it at all, at least unless his lawyers have access to it and, he argues, he has an opportunity to respond to its contents. The government argues that I must not disclose it, but that I need not consider it because the redacted version of what the President was told, as set forth in the Mobbs Declaration, is enough to justify the June 9 Order, unless for some reason I think otherwise, in which case I am invited to examine it in camera. Although neither the government nor Padilla mentions the point, the contents of the Sealed Mobbs Declaration could relate to another issue—whether, as the government claims, there is a reasonably cognizable risk to national security that could result from permitting Padilla to consult with counsel.

Although Padilla had been under arrest pursuant to the material witness warrant since May 8, his arrest was announced on June 10, after he was taken into Defense Department custody, by the President and by Attorney General John Ashcroft, who made his announcement during a trip to Moscow. Secretary Rumsfeld was questioned at a press briefing on Wednesday, June 12, during a trip to Doha, Qatar, about how close he thought Padilla and others were to being able to build a “dirty bomb,” and whether he thought Padilla would be “court martialled.” In response, Secretary Rumsfeld described Padilla as “an individual who unquestionably was involved in terrorist activities against the United States.” He said that Padilla “will be held by the United States government through the Department of Defense and be questioned.” He then added that in order to protect the United States and its allies, “one has to gather as much [ ] intelligence information as is humanly possible.” Secretary Rumsfeld then summarized as follows how Padilla would be dealt with:

Here is an individual who has intelligence information, and it is, in answer to the last part of your question—will be submitted to a military court, or something like that—our interest really in his case is not law enforcement, it is not punishment because he was a terrorist or working with the terrorists. Our interest at the moment is to try and find out everything he knows so that hopefully we can stop

other terrorist acts.

Secretary Rumsfeld distinguished as follows the government’s handling of Padilla from its handling of the usual case of one charged with breaking the law:

It seems to me that the problem in the United States is that we have—we are in a certain mode. Our normal procedure is that if somebody does something unlawful, illegal against our system of government, that the first thing we want to do is apprehend them, then try them in a court and then punish them. In this case that is not our first interest.

Our interest is to—we are not interested in trying him at the moment; we are not interested in punishing him at the moment. We are interested in finding out what he knows. Here is a person who unambiguously was interested in radiation weapons and terrorist activity, and was in league with al Qaeda. Now our job, as responsible government officials, is to do everything possible to find out what

has to gather as much [ ] intelligence information as is humanly possible.”

Secretary Rumsfeld distinguished as follows the government’s handling of Padilla from its handling of the usual case of one charged with breaking the law:

Secretary Rumsfeld offered anecdotal evidence to justify applying to Padilla procedures different from those applied to prisoners arrested in conventional

cases:

If you think about it, we found some material in Kandahar that within a week was used—information, intelligence information—that was used to prevent a[t] least three terrorist attacks in Singapore—against a U.S. ship, against a U.S. facility and against a Singaporean facility.

Now if someone had said when we found that information or person, well now let’s us arrest the person and let’s start the process of punishing that person for having done what he had did, we never would have gotten that information. People would have died.

So I think what our country and other countries have to think of is, what is your priority today? And given the power of weapons and given the number of terrorists that exist in the world, our approach has to [be] to try to protect the American people, and provide information to friendly countries and allies, and protect deployed forces from those kind of attacks.

I think the American people understand that, and that notwithstanding the fact that some people are so locked into the other mode that they seem not able to understand it, I suspect that . . . the American people will.

Secretary Rumsfeld’s quoted statements appear to show both his familiarity with the circumstances of Padilla’s detention, and his personal involvement in the handling of Padilla’s case.

It is not disputed that Padilla is held incommunicado, and specifically that he has not been permitted to consult with Newman or any other counsel.

Although the immediate predicate for this case lies in the events of September 11 and their consequences, that date did not mark the first violent act by al Qaeda directed against the United States. An indictment … charged defendants allegedly affiliated with that organization in connection with the August 1998 bombing of United States embassies in Nairobi, Kenya and Dar-Es-Salaam, Tanzania. According to that indictment, which was tried to a guilty verdict in the summer of 2001, al Qaeda emerged in 1989, under the leadership of Usama Bin Laden. As summarized by Judge Sand, who presided at that trial, the indictment portrayed al Qaeda as a “vast, international terrorist network” that functioned on its own and in cooperation with like-minded groups to oppose the United States through the use of “violent, terrorist tactics.” “From time to time, according to the Indictment, Bin Laden would issue rulings on Islamic law, called ‘fatwahs,’ which purported to justify al Qaeda’s violent activities.” Bin Laden has declared a “jihad” or holy war against the United States.

In addition to the September 11 attack and the 1998 bombings in Kenya and Tanzania, al Qaeda is believed, at a minimum, to be responsible for the October 2000 bombing of the U.S.S. Cole that killed 17 U.S. sailors, and to have participated in the October 1993 attack on U.S. military personnel serving in Somalia that killed 18 soldiers.

On October 8, 1999, al Qaeda was designated by the Secretary of State as a foreign terrorist organization, pursuant to section 219 of the Immigration and Nationality Act. It has also been similarly designated by the Secretary of State under the International Emergency Economic Powers Act. ….

IV. THE LAWFULNESS OF PADILLA’S DETENTION

The basic question dividing the parties is whether Padilla is lawfully detained. Like the question of whether this court has jurisdiction, that basic question unfolds into subsidiary questions: Does the President have the authority to designate as an enemy combatant an American citizen captured on American soil, and, through the Secretary of Defense, to detain him for the duration of armed conflict with al Qaeda? If so, can the President exercise that authority without violating 18 U.S.C. § 4001(a), which bars the detention of American citizens “except pursuant to an Act of Congress”? If so, by whatever standard this court must apply—itself a separate issue—is the evidence adduced by the government sufficient to justify the detention of Padilla? As was true of the questions underlying the issue of jurisdiction, each of those questions subsumes its own set of questions.

For the reasons set forth below, the answer to the first two of those questions is yes; a definitive answer to the third of those questions must await a further submission from Padilla, should he choose to make one, although the court will examine only whether there was some evidence to support the President’s finding, and whether that evidence has been mooted by events subsequent to Padilla’s detention.

A. The President’s Authority To Order That Padilla Be Detained As An Enemy Combatant Neither Padilla nor any of the amici denies directly the authority of the President to order the seizure and detention of enemy combatants in a time of war. Rather, they seek to distinguish this case from cases in which the President may make such an order on the grounds that this is not a time of war, and therefore the President may not use his powers as Commander in Chief or apply the laws of war to Padilla, and that Padilla in any event must be treated differently because he is an American citizen captured on American soil where the courts are functioning.

The claim by petitioner and the amici that this is not a time of war has two prongs: First, because Congress did not declare war on Afghanistan, the only nation state against which United States forces have taken direct action, the measures sanctioned during declared wars, principally in Ex Parte Quirin, discussed below, are not avail able here. Second, because the current conflict is with al Qaeda, which is essentially an international criminal organization that lacks clear corporeal definition, the conflict can have no clear end, and thus the detention of enemy combatants is potentially indefinite and therefore unconstitutional. For the reasons discussed below, neither prong of the argument withstands scrutiny.

The first prong of the argument—that we are not in a war and that only Congress can declare war—does not engage the real issue in this case, which concerns what powers the President may exercise in the present circumstances. Even assuming that a court can pronounce when a “war” exists, in the sense in which that word is used in the Constitution, …. a formal declaration of war is not necessary in order for the executive to exercise its constitutional authority to prosecute an armed conflict—particularly when, as on September 11, the United States is attacked. ….

The conclusion that the President may exercise his powers as Commander in Chief without a declaration of war is borne out not only by legal precedent, but also by even the briefest contemplation of our history….

Padilla and the amici challenge the President’s authority to declare him an enemy combatant, and to apply to him the laws of war, citing his American citizenship and his capture on American soil at a time when the courts were functioning. Before examining directly the issue of the President’s authority, it is necessary to examine what the designation “enemy combatant” means in this case. The laws of war draw a fundamental distinction between lawful and unlawful combatants. Lawful combatants may be held as prisoners of war, but are immune from criminal prosecution by their captors for belligerent acts that do not constitute war crimes.

Four criteria generally determine the conditions an armed force and its members must meet in order to be considered lawful combatants: (1) To be commanded by a person responsible for his subordinates; (2) To have a fixed distinctive emblem recognizable at a distance; (3) To carry arms openly; and (4) To conduct their operations in accordance with the laws and customs of War.

Those who do not meet those criteria, including saboteurs and guerrillas, may not claim prisoner of war status. The Third Geneva Convention, referred to above, reaffirmed the distinction between lawful and unlawful combatants. Article 4 of that treaty uses the same standards as the Hague Regulations for distinguishing who must be treated as a prisoner of war from who enjoys no such protection. Although in the past unlawful combatants were often summarily executed, such Draconian measures have not prevailed in modern times in what some still refer to without embarrassment as the civilized world.

Rather, as recognized in Quirin, unlawful combatants generally have been tried by military commissions. They are not entitled to prisoner of war status, either as a matter of logic or as a matter of law under the Third Geneva Convention. It is not that the Third Geneva Convention authorizes particular treatment for or confinement of unlawful combatants; it is simply that that convention does not protect them.

Although unlawful combatants, unlike prisoners of war, may be tried and punished by military tribunals, there is no basis to impose a requirement that they be punished. Rather, their detention for the duration of hostilities is supportable—again, logically and legally—on the same ground that the detention of prisoners of war is supportable: to prevent them from rejoining the enemy. Under the Third Geneva Convention, the recognized purpose of confinement during an ongoing conflict is “to prevent military personnel from taking up arms once again against the captor state.”

As noted, in the June 9 Order, the President designated Padilla an “enemy combatant” based on his alleged association with al Qaeda and on an alleged plan undertaken as part of that association. The point of the protracted discussion immediately above is simply to support what should be an obvious conclusion: when the President designated Padilla an “enemy combatant,” he necessarily meant that Padilla was an unlawful combatant, acting as an associate of a terrorist organization whose operations do not meet the four criteria necessary to confer lawful combatant status on its members and adherents. Indeed, even the Taliban militia, who appear at least to have acted in behalf of a government in Afghanistan, were found by Judge Ellis in Lindh not to qualify for lawful combatant status.

That brings us to the central issue present in this case: whether the President has the authority to designate as an unlawful combatant an American citizen, captured on American soil, and to detain him without trial. Padilla and the amici argue that, regardless of what treatment is permitted under the Third Geneva Convention and otherwise for unlawful combatants, the Constitution forbids indefinite detention of a citizen captured on American soil so long as “the courts are open and their process unobstructed.”....

Here, the basis for the President’s authority to order the detention of an unlawful combatant arises both from the terms of the Joint Resolution, and from his constitutional authority as Commander in Chief as set forth in The Prize Cases and other authority discussed above. Also as discussed above, no principle in the Third Geneva Convention impedes the exercise of that authority.

V. CONSULTATION WITH COUNSEL

The government has not disputed Padilla’s right to challenge his detention by means of a habeas corpus petition. Although Padilla has the ability, through his lawyer, to challenge the government’s naked legal right to hold him as an unlawful combatant on any set of facts whatsoever, he has no ability to make fact-based arguments because, as is not disputed, he has been held incommunicado during his confinement at the Consolidated Naval Brig in Charleston, and has not been permitted to consult with counsel. Therefore, unless I find that the only fact issue Padilla has a right to be heard on is whether the government’s proffered facts, taken alone and without right of response, are sufficient to warrant his detention by whatever evidentiary standard may apply—an argument that can be presented by counsel without access to Padilla—I must address the question of whether he may present facts, and how he may do so. As explained below: (i) Padilla does have the right to present facts; (ii) the most convenient way for him to go about that, and the way most useful to the court, is to present them through counsel; and (iii) the government’s arguments are insufficient to warrant denying him access to counsel. Therefore, to the extent set forth below, Padilla will be permitted to consult with counsel in aid of prosecuting this petition….

…access to counsel need be granted only for purposes of presenting facts to the court in connection with this petition if Padilla wishes to do so; no general right to counsel in connection with questioning has been hypothesized here, and thus the interference with interrogation would be minimal or nonexistent. …

VI. THE STANDARD APPLICABLE TO THIS COURT’S REVIEW AND THE FACTS THE COURT MAY CONSIDER

Padilla insists that this court conduct a “searching inquiry” into the factual basis for the President’s determination that Padilla is an enemy combatant, lest the court “rubber stamp” the June 9 Order and thereby enforce a “Presidential whim.” In essence, Padilla argues that he is entitled to a trial on the issue of whether he is an unlawful combatant or not….

The commission of a judge, as The Prize Cases, the other authority cited above, and the quoted language from Zadvydas suggest, does not run to deciding de novo whether Padilla is associated with al Qaeda and whether he should therefore be detained as an unlawful combatant. It runs only to deciding two things: (i) whether the controlling political authority—in this case, the President—was in fact exercising a power vouchsafed to him by the Constitution and the laws; that determination in turn, is to be made only by examining whether there is some evidence to support his conclusion that Padilla was, like the German saboteurs in Quirin, engaged in a mission against the United States on behalf of an enemy with whom the United States is at war, and (ii) whether that evidence has not been entirely mooted by subsequent events. The first determination—that there is some evidence of Padilla’s hostile status—would support the President’s assertion in the June 9 Order that he was exercising the power referred to above. That is the “some evidence” test suggested in the government’s papers, and it will be applied once Padilla presents any facts he may wish to present to the court….

To recapitulate: (i) Newman may pursue this petition as next friend to Padilla, and the government’s motion to dismiss for lack of standing therefore is denied; (ii) Secretary Rumsfeld is the proper respondent in this case, and this court has jurisdiction over him, as well as jurisdiction to hear this case, and the government’s motion to dismiss for lack of jurisdiction, or to transfer to South Carolina, is denied; (iii) the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla’s detention is not per se unlawful; (iv) Padilla may consult with counsel in aid of pursuing this petition, under conditions that will minimize the likelihood that he can use his lawyers as unwilling intermediaries for the transmission of information to others and may, if he chooses, submit facts and argument to the court in aid of his petition; (v) to resolve the issue of whether Padilla was lawfully detained on the facts present here, the court will examine only whether the President had some evidence to support his finding that Padilla was an enemy combatant, and whether that evidence has been mooted by events subsequent to his detention; the court will not at this time use the document submitted in camera to determine whether the government has met that standard.

The parties will discuss and arrange the conditions for defense counsel’s consultation with Padilla…

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 03-2235(L), 03-2438(CON.)

JOSE PADILLA, DONNA R. NEWMAN, AS NEXT FRIEND OF JOSE PADILLA, PETITIONER-APPELLEE CROSS-APPELLANT v.DONALD RUMSFELD, RESPONDENT-APPELLANTCROSS-APPELLEE [Dec. 18, 2003]

OPINION

Before: POOLER, B.D. PARKER and WESLEY, Circuit Judges.

POOLER and B.D. PARKER, Circuit Judges.

INTRODUCTION

This habeas corpus appeal requires us to consider a series of questions raised by Secretary of Defense Donald Rumsfeld and by Donna R. Newman, Esq., on behalf of Jose Padilla, an American citizen held by military authorities as an enemy combatant. Padilla is suspected of being associated with al Qaeda and planning terrorist attacks in this country. The questions were certified by the United States District Court for the Southern District of New York (Michael B. Mukasey, C.J.) and involve, among others: whether the Secretary of Defense is Padilla’s “custodian” or habeas purposes, whether the Southern District of New York had jurisdiction over the petition, and whether the President has the authority to detain Padilla as an enemy combatant. We conclude that the Secretary of Defense is a proper respondent and that the District Court had jurisdiction. We also conclude that Padilla’s detention was not authorized by Congress, and absent such authorization, 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.

As this Court sits only a short distance from where the World Trade Center once 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. 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. Where, as here, the President’s power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. § 4001(a) (2000) (the “Non-Detention Act”) prohibits such detentions absent specific congressional authorization.

Congress’s Authorization for Use of Military Force Joint Resolution, (“Joint Resolution”), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists. In light of this express prohibition, the government must undertake to show that Padilla’s detention can nonetheless be grounded in the President’s inherent constitutional powers. We conclude that it has not made this showing. In reaching this conclusion, we do not address the detention of an American citizen seized within a zone of combat in Afghanistan, such as the court confronted in Hamdi v. Rumsfeld (“Hamdi III”). Nor do we express any opinion as to the hypothetical situation of a congressionally authorized detention of an American citizen.

Accordingly, we remand to the District Court with instructions to issue a writ of habeas corpus directing Secretary Rumsfeld to release Padilla from military custody within 30 days, at which point the government can act within its legislatively conferred authority to take further action. For example, Padilla can be transferred to the appropriate civilian authorities who can bring criminal charges against him. If appropriate, he can also be held as a material witness in connection with grand jury proceedings. Under any scenario, Padilla will be entitled to the constitutional protections extended to other citizens….

II. Power to Detain

A. Introduction

The District Court concluded, and the government maintains here, that the indefinite detention of Padilla was a proper exercise of the President’s power as Commander-in-Chief. The power to detain Padilla is said to derive from the President’s authority, settled by Ex parte Quirin, to detain enemy combatants in wartime—authority that is argued to encompass the detention of United States citizens seized on United States soil. This power, the court below reasoned, may be exercised without a formal declaration of war by Congress and “even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, . . . engages the President’s full powers as Commander in Chief.” Padilla I. Specifically, the District Court found that the Joint Resolution acted as express congressional authorization under 18 U.S.C. § 4001(a), which prohibits the detention of American citizens absent such authorization. In addition, the government claims that 10 U.S.C. § 956(5), a statute that allows the military to use authorized funds for certain detentions, grants authority to detain American citizens.

These alternative arguments require us to examine the scope of the President’s inherent power and, if this is found insufficient to support Padilla’s detention, whether Congress has authorized such detentions of American citizens. We reemphasize, however, that our review is limited to the case of an American citizen arrested in the United States, not on a foreign battlefield or while actively engaged in armed conflict against the United States. As the Fourth Circuit recently—and accurately—noted in Hamdi v. Rumsfeld, “[t]o compare this battlefield capture [of Hamdi] to the domestic arrest in Padilla v. Rumsfeld is to compare apples and oranges.”

B. The Youngstown Analysis

Our review of the exercise by the President of war powers in the domestic sphere starts with the template the Supreme Court constructed in Youngstown. Youngstown involved the validity of President Truman’s efforts during the Korean War to seize the country’s steel mills on the eve of a nationwide strike by steelworkers. Writing for the majority, Justice Black explained that the President’s power “must stem either from an act of Congress or from the Constitution itself.” The Court held that the seizure could not be justified as a function of the President’s Commander-in-Chief powers and that it had not been authorized by Congress. Justice Jackson’s concurrence, which provides the framework for reviewing the validity of executive action, posits three categories for evaluating the exercise of emergency powers by the President.

First, when the President acts pursuant to an express or implied authorization from Congress, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” This category is exemplified by the power exercised by the President in Quirin and in United States v. Curtiss-Wright Export Corp. Second, when the President acts in the absence of either a congressional grant or denial of authority, “he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Finally, the third category includes those situations where the President takes measures incompatible with the express or implied will of Congress. In such cases, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” The “[c]ourts can sustain exclusive presidential control [in this situation] only by disabling the Congress from acting upon the subject.” Here, we find that the President lacks inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat. We also conclude that the Non-Detention Act serves as an explicit congressional “denial of authority” within the meaning of Youngstown, thus placing us in Youngstown’s third category. Finally, we conclude that because the Joint Resolution does not authorize the President to detain American citizens seized on American soil, we remain within Youngstown’s third category….

The Constitution’s explicit grant of the powers authorized in the Offenses Clause, the Suspension Clause, and the Third Amendment, to Congress is a powerful indication that, absent express congressional authorization, the President’s Commander-in-Chief powers do not support Padilla’s confinement. The level of specificity with which the Framers allocated these domestic powers to Congress and the lack of any even near-equivalent grant of authority in Article II’s catalogue of executive powers compels us to decline to read any such power into the Commander-in-Chief Clause. In sum, while Congress—otherwise acting consistently with the Constitution—may have the power to authorize the detention of United States citizens under the circumstances of Padilla’s case, the President, acting alone, does not….

Based on the text of the Constitution and the cases interpreting it, we reject the government’s contention that the President has inherent constitutional power to detain Padilla under the circumstances presented here. Therefore, under Youngstown, we must now consider whether Congress has authorized such detentions….

As we have seen, the Non-Detention Act provides: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of

Congress.” 18 U.S.C. § 4001(a). The District Court held that this language “encompasses all detentions of United States citizens.”….

Section 4001(a) was enacted in 1971 and originated as an amendment to legislation repealing the Emergency Detention Act of 1950, which authorized the detention by the Attorney General during an invasion, a declared war, or “an

insurrection within the United States in aid of a foreign enemy” of “each person as to whom there is reasonable ground to believe that such person probably will engage

in, or probably will conspire with others to engage in, acts of espionage or of sabotage.” Congress referred to section 4001(a) as the Railsback amendment for its drafter, Representative Railsback. The Railsback amendment emerged from the House Judiciary Committee and was opposed by the House Internal Security Committee, which offered other alternatives….

Congress’s passage of the Railsback amendment by a vote of 257 to 49 after ample warning that both the sponsor of the amendment and its primary opponent believed it would limit detentions in times of war and peace alike is strong evidence that the amendment means what it says, that is that no American citizen can be detained without a congressional act authorizing the detention.

In addition, almost every representative who spoke in favor of repeal of the Emergency Detention Act or adoption of the Railsback amendment or in opposition to other amendments, described the detention of Japanese-American citizens during World War II as the primary motivation for their positions. Because the World War II detentions were authorized pursuant to the President’s war making powers as well as by a congressional declaration of war and by additional congressional acts, the manifest congressional concern about these detentions also suggests that section 4001(a) limits military as well as civilian detentions.

Finally, a statement by Representative Eckhardt demonstrates that Congress intended to require its express authorization before the President could detain citizens. He said: “You have got to have an act of Congress to detain, and the act of Congress must authorize detention.” Based primarily on the plain language of the Non-Detention Act but also on its legislative history and the Supreme Court’s interpretation, we conclude that the Act applies to all detentions and that precise and specific language authorizing the detention of American citizens is required to override its prohibition….

Since we conclude that the Non-Detention Act applies to military detentions such as Padilla’s, we would need to find specific statutory authorization in order to uphold the detention. The government claims that both the Joint Resolution, which authorized the use of force against the perpetrators of the September 11 terrorist attacks, and 10 U.S.C. § 956(5), passed in 1984, which provides funding for military detentions, authorize the detention of enemy combatants. It is with respect to the Joint Resolution that we disagree with the District Court, which held that it must be read to confer authority for Padilla’s detention. It found that the “language [of the Joint Resolution] authorizes action against not only those connected to the subject organizations who are directly responsible for the September 11 attacks, but also against those who would engage in ‘future acts of international Terrorism’ as part of ‘such . . . organizations.’ ”

We disagree with the assumption that the authority to use military force against these organizations includes the authority to detain American citizens seized on American soil and not actively engaged in combat. First, we note that the Joint Resolution contains no language authorizing detention….

Next, the Secretary argues that Padilla’s detention is authorized by 10 U.S.C. § 956(5), which allows the use of appropriated funds for “expenses incident to the maintenance, pay, and allowances of prisoners of war, other persons in the custody of the Army, Navy or Air Force whose status is determined by the Secretary concerned to be similar to prisoners of war, and persons detained in the custody of [the Armed Services] pursuant to Presidential proclamation.” The Fourth Circuit found that section 956(5) along with the Joint Resolution sufficed to authorize Hamdi’s detention. Hamdi III. With respect to Section 956(5), the court said: “It is difficult if not impossible to understand how Congress could make appropriations for the detention of persons ‘similar to prisoners of war’ without also authorizing their detention in the first instance.”

At least with respect to American citizens seized off the battlefield, we disagree. Section 965(5) authorizes nothing beyond the expenditure of money. Endo unquestionably teaches that an authorization of funds devoid of language “clearly” and “unmistakably” authorizing the detention of American citizens seized here is insufficient. In light of Endo, the Non-Detention Act’s requirement that Congress specifically authorize detentions of American citizens, and the guarantees of the Fourth and Fifth Amendments to the Constitution, we decline to impose on section 956(5) loads it cannot bear.

CONCLUSION

In sum, we hold that (1) Donna Newman, Esq., may pursue habeas relief on behalf of Jose Padilla; (2) Secretary of Defense Rumsfeld is a proper respondent to the habeas petition and the District Court had personal jurisdiction over him; (3) in the domestic context, the President’s inherent constitutional powers do not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat; (4) the Non-Detention Act prohibits the detention of American citizens without express congressional authorization; and (5) neither the Joint Resolution nor 10 U.S.C. § 956(5) constitutes such authorization under section 4001(a). These conclusions are compelled by the constitutional and statutory provisions we have discussed above. The offenses Padilla is alleged to have committed are heinous crimes

severely punishable under the criminal laws. Further, under those laws the Executive has the power to protect national security and the classified information upon which it depends. And if the President believes this authority to be insufficient, he can ask Congress—which has shown its responsiveness—to authorize additional powers. To reiterate, we remand to the District Court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Padilla from military custody within 30 days. The government can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him. Also, if appropriate, Padilla can be held as a material witness in connection with grand jury proceedings. In any case, Padilla will be entitled to the constitutional protections extended to other citizens.

IN THE Supreme Court of the United States

DONALD RUMSFELD, Petitioner, v. JOSE PADILLA AND DONNA R. NEWMAN,

AS NEXT FRIEND OF JOSE PADILLA, Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF IN OPPOSITION OF RESPONDENT

STATEMENT

For almost two years, Jose Padilla, an American citizen seized on American soil outside a zone of combat, has been held incommunicado in a military prison. The sole basis for his detention is a presidential order declaring him to be an “enemy combatant” – a term not defined by any act of Congress, any federal regulation, or any treaty. Under the Government’s theory, the President may declare any citizen within the United States to be an “enemy combatant,” allowing the military to imprison the individual indefinitely (or until the “war on terror” is over) and to interrogate him without limit until the Secretary of Defense decides his “intelligence value” is gone. Under the Government’s view, the Executive has virtually unbridled and unreviewable power to imprison American citizens in the domestic arena – a proposition wholly at odds with our constitutional history and the rule of law on which our country is based. The Petition should be denied. Jose Padilla has been imprisoned for almost two years. No criminal charges have been brought against him. He is not being held as a material witness. The Court of Appeals properly held that unless charges are brought or a material witness warrant is served, Padilla is legally entitled to be released. There is nothing in Article II of the Constitution, or in any federal statute, that gives the President the unilateral power to seize American citizens in the domestic arena based on the President’s unreviewable declaration that they are “enemy combatants.” The Court of Appeals properly held that any authority to imprison American citizens domestically must, at a minimum, emanate from Congress, and Congress has not authorized, or established any parameters for, such a scheme of detention. If the Court were to grant the Petition and find that the President had such a power to detain, it also must determine the circumstances and limits under which the President’s asserted power may be exercised, and whether and how an individual may challenge the President’s claim he is an “enemy combatant.” Astoundingly, the Government asserts it may hold Padilla indefinitely so long as it produces “some evidence” – which it has defined as “any evidence in the record that couldsupport the conclusion” – that Padilla is an undefined “enemy combatant.” The Government also has argued that Padilla has no need for, or right to, counsel to challenge this unprecedentedly minimal showing, and it contends that even allowing Padilla to consult with counsel would upset the “sense of dependency” the Government’s “interrogators are attempting to create” with Padilla. Any consideration by this Court of the President’s authority to detain must include review of whether, and pursuant to what process, the Executive may continue to hold Padilla after 20 months of imprisonment and interrogation. The Court also should decline to review the Government’s second question, which concerns whether Secretary Rumsfeld is a “proper respondent” and subject to service of process in New York. These are not the questions of national importance for which the Solicitor General seeks to have this case heard on an expedited basis. The Government’s argument would allow the Executive to hand-pick the place where challenges to its authority may be heard, and it ignores the last 40 years of this Court’s habeas jurispru dence. Padilla’s habeas petition was filed in New York because the Government chose to bring Padilla there on a material witness warrant; because counsel was appointed for and consulted with Padilla in New York; and because the Government (through Secretary Rumsfeld), two days before a hearing on counsel’s motion challenging Padilla’s detention, sent military personnel to New York to seize Padilla from the federal marshals holding him in a federal detention center in New York.

The procedural issues raised in the Petition do not concern the power of the courts to hear this case; the Government concedes that habeas jurisdiction exists. Every judge to consider these issues, including Judge Wesley (otherwise dissenting in part) and Chief District Judge Mukasey, has agreed that Secretary Rumsfeld is a proper respondent and subject to suit in New York. These rulings, narrowly crafted to the unique facts of this case, are squarely in line with prior decisions of this Court. Accordingly, this case is not an appropriate vehicle for considering broader questions of procedure in habeas cases, particularly on the expedited schedule sought by the Solicitor General.

For these reasons, the Petition should be denied.

President George Bush’s Declaration That

Jose Padilla is an “Enemy Combatant.”

Note: “Redacted” means edited out.