[News] U.S. Courts Reject Detention Policy in 2 Terror Cases

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Fri Dec 19 09:11:34 EST 2003



December 19, 2003

http://www.nytimes.com/2003/12/19/national/19DETA.html?pagewanted=print&position=



U.S. Courts Reject Detention Policy in 2 Terror Cases

By NEIL A. LEWIS and WILLIAM GLABERSON

A divided federal appeals court in New York ruled yesterday that President 
Bush lacked the authority to detain indefinitely a United States citizen 
arrested on American soil on suspicion of terrorism simply by declaring him 
"an enemy combatant."

Within hours, a second federal appeals court, based in San Francisco, also 
in a divided ruling, declared that the administration's policy of 
imprisoning some 660 noncitizens captured in the Afghan war on a naval base 
in Guantánamo Bay, Cuba, without access to United States legal protections 
was unconstitutional as well as a violation of international law.

The twin blows to the underpinnings of the administration's elaborate legal 
strategy erected after the Sept. 11 terrorist attacks make it all the more 
likely that the Supreme Court will have the final say on matters that the 
administration had argued did not belong in the courts in the first place.

The Supreme Court agreed just last month to hear the case of the detainees 
at Guantánamo and is widely expected to rule as well on the issues raised 
in the case of Jose Padilla, the American declared an enemy combatant.

The court is also expected to announce next week whether it will hear a 
related case involving Yaser Esam Hamdi, who has been held alongside Mr. 
Padilla in the naval brig in Charleston, S.C. Mr. Hamdi, who is believed to 
be a United States citizen as well as a Saudi, was arrested in Afghanistan 
and is being held as an enemy combatant, an action that was upheld by an 
appeals court based in Richmond, Va.

The ruling by the Court of Appeals for the Second Circuit, in New York, 
involved Mr. Padilla, former gang member in Chicago and convert to Islam. 
His case drew wide attention when Attorney General John Ashcroft said in 
June 2002 that he had been planning to explode a radioactive "dirty bomb" 
in the United States.

The majority of the three-judge panel ruled that while Congress might have 
the power to authorize the detention of an American, the president, acting 
on his own, did not.

"The president, acting alone, possesses no inherent constitutional 
authority to detain American citizens seized within the United States, away 
from the zone of combat, as enemy combatants," said the majority, composed 
of Judges Rosemary S. Pooler, an appointee of President Bill Clinton, and 
Barrington D. Parker Jr., appointed by President Bush. [Excerpts, Page A31.]

The appeals court gave the government 30 days to release Mr. Padilla or 
take some other action. The judges said the government could then bring 
criminal charges against him in civilian courts or seek to have him held as 
a material witness, a procedure that has been used to detain others and 
that is similarly under challenge in federal courts.

In a strong dissent, Judge Richard C. Wesley, a Bush appointee, said he 
believed the president had the power to "thwart acts of belligerency on 
U.S. soil." Judge Wesley called it startling that the majority would say 
the president lacked authority to detain a citizen terrorist who was 
"dangerously close" to putting Americans in peril.

The chief White House spokesman said the administration would seek to have 
the Padilla ruling overturned.

"The president's most solemn obligation is protecting the American people," 
said the spokesman, Scott McClellan. "We believe the Second Circuit ruling 
is troubling and flawed. The president has directed the Justice Department 
to seek a stay, and further judicial review."

In the case of the Guantánamo detainees, the ruling, by a panel of the 
United States Court of Appeals for the Ninth Circuit, provides a 
counterweight to an earlier ruling by a federal appeals court based in 
Washington, which had unequivocally supported the administration's position 
that the detention camp in Cuba was out of the reach of United States law.

Yesterday's decision out of San Francisco means that when the justices 
deliberate the issues of Guantánamo as they have already agreed to do, they 
will have two conflicting lower court opinions on which to deliberate.

While the Guantánamo situation has provoked anger both in the United States 
and abroad, the issues raised in the New York ruling were, if anything, 
more contentious. The detention of United States citizens arrested on 
American soil as enemy combatants and consequently keeping them from the 
usual legal protections Americans enjoy have been treated as especially 
alarming by civil liberties advocates.

"This is by far the biggest legal setback the administration has faced in 
conducting its war on terrorism," said David Cole, a law professor at 
Georgetown University and the author of a recent book on the subject. 
"That's because this is the furthest they've gone out on a limb. They had 
essentially asserted that the president had unchecked authority to label 
U.S. citizens as enemy combatants anywhere in the United States and lock 
them up."

Mr. Padilla has been held incommunicado for 18 months at a Navy brig in 
Charleston. The court majority said he should be entitled to full 
constitutional protections, including access to his lawyers. His lawyers 
have not been permitted to see him since President Bush declared him an 
enemy combatant in June 2002.

"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," Judges Parker and 
Pooler wrote.

"But presidential authority does not exist in a vacuum," they said, "and 
this case involves not whether those responsibilities should be 
aggressively pursued but whether the president is obligated" to share them 
with Congress.

The majority said a law known as the Non-Detention Act provides that "no 
citizen shall be imprisoned or otherwise detained by the United States 
except pursuant to an act of Congress." The court said the joint 
Congressional resolution authorizing operations against terrorism after 
Sept. 11 "contains no language authorizing detention."

In the ruling on the Guantánamo detainees by the appeals court in San 
Francisco, two judges on a three-judge panel similarly ruled against the 
Bush administration, with the third dissenting.

The majority opinion, written by Judge Stephen Reinhardt and joined by 
Judge Milton I. Shadur, like Judge Reinhardt an appointee of President 
Jimmy Carter, based its conclusion on the notion that the naval base at 
Guantánamo is not part of Cuba as the government has contended and thus 
outside United States jurisdiction. The opinion said Guantánamo was clearly 
under the territorial jurisdiction of the United States and thus the 
plaintiff, Salim Gherebi, a Libyan, was entitled to the protections of 
United States law.

In dissent, Judge Susan P. Graber, a Clinton appointee, said she believed 
that a 1950 Supreme Court ruling precluded courts' intervention in the case.

The 58-page majority ruling is largely a discussion of the circumstances 
under which the United States controls Guantánamo, which it leased from 
Cuba in 1903 in perpetuity as long as it maintains a presence there.

The court said that under the government's approach, detainees like Mr. 
Gherebi "would appear to have no effective right to seek relief in the 
courts of any nation or before any judicial body." The opinion said that in 
times of national emergency like war, "it is the obligation of the judicial 
branch to ensure the preservation of our constitutional values and to 
prevent the executive branch from running roughshod over the rights of 
citizens and aliens alike."

Stephen Yagman, Mr. Gherebi's lawyer, said he brought the case in 
California because that was where he was when he was approached by Mr. 
Gherebi's brother, who lives in San Diego.

Neil A. Lewis reported from Washington for this article, and William 
Glaberson from New York.


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