Two courts reject Bush's authority on detainees

Terror suspects have right to lawyers, panels rule

December 19, 2003|By Laura Sullivan | Laura Sullivan,SUN NATIONAL STAFF

WASHINGTON - In separate rulings, two federal appeals courts delivered a sharp rebuke yesterday of the Bush administration's efforts to hold terrorist suspects as "enemy combatants" with no access to lawyers or to civilian courts.

In one decision, the U.S. Court of Appeals for the 2nd Circuit in New York ordered that Jose Padilla, a U.S. citizen accused of plotting to set off a radioactive "dirty bomb" and held incommunicado for nearly 18 months, be released from military custody at the Navy brig in Charleston, S.C.

The court said the Bush administration lacks authority to hold an American citizen indefinitely on U.S. soil, and it gave officials 30 days to transfer Padilla to civilian custody to face charges.

In the other ruling, the U.S. Court of Appeals for the 9th Circuit in San Francisco ruled that about 660 detainees from the war on terror being held as enemy combatants at the U.S. naval base at Guantanamo Bay, Cuba, must be given access to lawyers and to the U.S. courts.

Together, the rulings signaled a broad rejection of the administration's campaign to bar suspected terrorists indefinitely from the constitutional protections of the U.S. court system.

The decisions, both of them issued by divided court panels, are likely to wind up in a battle royal before the Supreme Court between civil rights advocates and the administration, which has maintained a hard-line legal policy toward the detainees.

The Justice Department criticized both rulings and said it would ask for a delay of the Padilla decision while officials decide whether to request a review by the full 2nd Circuit or to appeal directly to the Supreme Court.

Mark Corallo, a department spokesman, said the department would await a decision in a similar case involving Guantanamo detainees now before the Supreme Court before deciding how to respond to the 9th Circuit ruling.

"In times of war," Corallo said, "the president must have the authority to act when an individual associated with our nation's enemies enters our country to endanger American lives."

`Troubling and flawed'

President Bush's spokesman, Scott McClellan, called the Padilla ruling "troubling and flawed," saying the president's "most solemn obligation is protecting the American people."

Civil rights advocates and some congressional Democrats, meanwhile, hailed the two rulings as a repudiation of policies that they said sought to circumvent the Constitution's limits on presidential power.

"The administration's assertions of unilateral authority and its arrogant resistance to oversight and public accountability have needlessly and corrosively strained our constitutional principles," said Sen. Patrick J. Leahy of Vermont, the senior Democrat on the Senate Judiciary Committee.

"The court's decision," he said, "underscores the bedrock constitutional principle that a president's power is not absolute but is subject to the rule of law."

The Justice Department absorbed further criticism yesterday regarding detainees with the release of a report from the department's inspector general's office, detailing what investigators said was abusive treatment by guards at a federal prison in Brooklyn, N.Y.

The detainees were among more than 700 who were held on immigration violations in the months after the Sept. 11 attacks. Few were ever connected to terrorism, Justice officials have acknowledged.

Since Padilla's arrest in the summer of 2002 on charges of plotting to set off a "dirty bomb," his case has become a symbol of the friction between civil liberties and national security since the Sept. 11 attacks. Unlike a fellow enemy combatant and U.S. citizen, Yasser Hamdi, who was seized on the battlefield in Afghanistan, Padilla was arrested in the United States, at Chicago's O'Hare International Airport.

Initially, Padilla was moved to New York and was designated a "material witness" in terrorism investigations. But within days, administration officials said they worried that the civilian courts would not let them hold Padilla indefinitely as a material witness. So officials deemed him an enemy combatant and have held him incommunicado at a military brig ever since.

Padilla was later transferred to South Carolina, which is in the jurisdiction of the 4th Circuit, the most conservative appellate court and the arbiter of most of the administration's terrorism cases. But in its 2-1 ruling yesterday, a panel of the 2nd Circuit, which is divided evenly between Democratic and Republican appointees, said it had jurisdiction in the case despite Padilla's current location.

No authority

The 2nd Circuit panel concluded that the president lacks authority to detain American citizens on American soil without Congress' express consent.

"Presidential authority does not exist in a vacuum," Judges Barrington D. Parker Jr. and Rosemary S. Pooler wrote in their majority opinion.

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