Supreme Court to Hear 'Dirty Bomber' Case
By Charles Lane Washington Post Staff Writer
February 20, 2004
The Supreme Court announced yesterday that it will rule on a crucial -- and fiercely debated -- element of President Bush's legal strategy in the war against terrorism: his assertion of authority to declare U.S. citizens captured on American soil "enemy combatants" and detain them indefinitely without charges or access to counsel.
In a brief order, the justices said they would hear the Bush administration's appeal of a ruling by a federal appeals court that invalidated the president's June 2002 decision to detain as an enemy combatant Jose Padilla, a U.S. citizen arrested in Chicago on suspicion of involvement in an al Qaeda bomb plot. The justices outlined an expedited briefing schedule that would enable them to hear the case by the last week of April and decide it by July.
Although expected, the court's decision nonetheless has dramatic implications.
Now, all the elements are in place for a series of Supreme Court rulings this spring that will define the power of the commander-in-chief during wartime -- and bring an election-year climax to the national debate over civil liberties and public safety that has been simmering since the terror attacks of Sept. 11, 2001.
The Padilla case, Rumsfeld v. Padilla, No. 03-1027, joins a companion case already granted by the court in which a U.S.-born Saudi national captured as an alleged Taliban fighter in Afghanistan is challenging the president's authority to designate him as an enemy combatant. The court is also scheduled to hear an appeal by more than a dozen foreign alleged al Qaeda and Taliban detainees at the Guantanamo Bay Naval Base who claim that they have a right to seek their freedom in federal court.
Padilla's case has been the focus of controversy since he was arrested upon his return from Pakistan to Chicago's O'Hare International Airport on May 8, 2002. A former street-gang member with a homicide conviction in his juvenile record, Padilla had converted to Islam and used the name Abdullah al Muhajir during travels to Egypt, Saudi Arabia and Afghanistan.
U.S. officials had developed intelligence that linked him to al Qaeda; his return to the country was believed to be related to al Qaeda plans to detonate a radioactive "dirty bomb" within the United States.
Initially, the government held Padilla as a material witness, and a public defender was assigned to represent him. But on June 9, 2002, just before a deadline by which the Justice Department would have had to either charge Padilla or release him, Bush signed an order declaring him an enemy combatant and ordered him sent to a U.S. Navy brig in South Carolina. He has been held there ever since, without access to a lawyer until recent weeks.
Administration officials say this is necessary both because Padilla is dangerous himself, and because he must be interrogated in isolation until he tells what he knows about al Qaeda and its network within the United States.
The Bush administration argues that the president's actions in the Padilla case are fully authorized, both by his inherent wartime powers as commander-in-chief and by the Sept. 18, 2001, joint congressional resolution that gave him a free hand to use "all necessary and appropriate force against those . . . persons" linked to the Sept. 11 perpetrators, in order to prevent future attacks.
Civil libertarians and lawyers who have stepped forward to represent Padilla have countered that there is no precedent for an assertion of executive authority over U.S. citizens so sweeping that it could give the president the power to detain anyone, without any check on his decisions by another branch of government.
The Sept. 18 joint resolution does not authorize the detention of U.S. citizen enemy combatants, Padilla's lawyers argue, so the president's actions violate the 1971 Non-Detention Act, which says that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."
And so far, the courts have sided with the administration's opponents.
On Dec. 4, 2002, Chief Judge Michael B. Mukasey of the federal district court in Manhattan ruled that, while the president does have authority to hold Padilla, Padilla also has a right to contest the president's evidence against him in court, and to consult with a lawyer in pressing his case.
After the government appealed Mukasey's ruling, a three-judge panel of the New York-based U.S. Court of Appeals for the 2nd Circuit ruled 2-1 in Padilla's favor.
The 2nd Circuit's Dec. 18 ruling was much broader, however. The two-judge majority agreed with Padilla's lawyers that the president lacked the power to designate and detain U.S. citizens as enemy combatants because Congress had not expressly authorized him to do so. The court ordered Padilla released within 30 days, but that order has been stayed pending the government's appeal to the Supreme Court. Top