Enemy Combatant: Jose
Padilla
The Center for National
Security Studies and The
Constitution Project filed an amicus brief with the Court
on behalf of Padilla on April 12, 2004. For transcripts of the oral argument
click here.
December 18, 2003: The federal court of appeals
for the Second Circuit ruled that President Bush does not have the authority to
detain Jose Padilla. In a 2-to-1 ruling, the three-judge pannel said that
the detention of Padilla was not authorized by Congress and that Bush could not
designate Padilla as an enemy combatant without their authorization.
History of Padilla's
Detention:
Jose Padilla, an American
citizen born in Brooklyn, New
York, was arrested by the FBI at Chicago's
O'Hare International Airport on May 8, 2002 after disembarking from a plane
returning from Pakistan.
Accused of plotting to detonate a radioactive "dirty bomb," Padilla
was taken into custody and held as a material witness. He was then flown to New York City to testify
before a grand jury.
In New York, Padilla met his court-appointed
counsel Donna Newman. Their last meeting was June 7, 2002. On June 9, the President designated Padilla an enemy combatant
and ordered him transferred into military custody. Padilla was subsequently
moved to a naval brig in Charleston,
South Carolina. Since then,
Padilla has been held incommunicato and not allowed to talk to his lawyer.
Almost immediately,
Padilla's lawyer filed a writ of habeas corpus challenging his detention by the
military. Padilla currently has no knowledge of the legal action taken on his
behalf.
The primary basis for
Padilla's detention was a statement by Pentagon official Michael Mobbs (known
as the Mobbs Declaration). Mobbs stated
that Padilla had closely associated with al Qaeda leaders while traveling
through Saudi Arabia, Afghanistan, and Pakistan over the past several
years. He also stated that while Padilla had some training in wiring
explosives, his plan to detonate a "dirty bomb" was still in the
planning stages. Nevertheless, the President stated in his order detaining
Padilla that, "Padilla posed a continuing, present and grave danger."
Judge Michael B. Mukasey of
the District Court for the Southern District of New York ruled in December 2002
that while Padilla can be held as an enemy combatant, he must be granted access
to his lawyers. The government refused to comply, however, stating that if
Newman and co-counsel Andrew Patel were to meet with their client the
interruption would be enough to jeopardize the government's ongoing
interrogation of Padilla. Furthermore, it is the government's contention that
since Padilla was designated an enemy combatant under the laws of war, the
Constitution does not grant him with a right to counsel.
The government appealed
Mukasey's ruling in July 2002 and the case, Padilla v. Rumsfeld, was
sent to the federal appeals court [for the Second Circuit].
The government has detained
Padilla incommunicado for more than 18 months. He has never been charged with a
crime and has never had the opportunity to present any defense in any court.
Donna Newman at one point asked the Pentagon if she could write to her client,
and she was assured that she could. But would he get the mail? That, she was
told, could not be guaranteed.
- 18 U.S.C. § 4001(a) of the Federal Code provides that:
"No citizen shall be imprisoned or otherwise detained by the United States
except pursuant to an Act of Congress."
- Congressional
Authorization for the Use of Military Force. The authorization allows
the president to use "all necessary and appropriate force"
against 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 terrorist attacks against the United States.
(September 18, 2001)
- Presidential Order
designating Jose Padilla an enemy combatant. (June 9, 2002)
- Mobbs Declaration
justifying Padilla's detention. (August 27, 2002)
- Declaration of Vice
Admiral Lowell Jacoby, Director of the Defense Intelligence Agency,
supporting the incommunicato detention of Padilla as necessary to preserve
the integrity of the government's interrogations. (January 9, 2003)
Proceedings in the District Court for the Southern District of New York:
- Padilla's Amended
Petition for Writ of Habeas Corpus, June 19, 2002
- Center for National
Security Studies' Amicus Brief with the ACLU in support of Padilla's
right to counsel, September 26, 2002
- Supplemental Amicus
Brief by the New York State Association of Criminal Defense Lawyers
and the National Association of Criminal Defense Lawyers, September 27,
2002
- Judge Mukasey's
Opinion holding that Padilla can meet with his lawyers, December 4,
2002
- Judge
Mukasey's Opinion and Order granting the Government's motion to
reconsider, but maintaining his December opinion, March 11, 2003.
Briefs filed in the federal appeals court for the Second Circuit:
- Government's
Brief, July 22, 2003
- Padilla's Brief, July
23, 2003
- Government's Reply
Brief, September 2, 2003
- Padilla's Reply Brief,
September 2, 2003
- Amicus
Brief by the American Bar Association supporting Padilla, July 29,
2003
- Amicus
Brief by Experts on Constitutional Law (Hon. John J. Gibbons, et al.),
July 30, 2003
- Center
for National Security Studies, et al. Amicus Brief in support of
Padilla, July 28, 2003
- Amicus
Brief by the Experts on the Laws of War, August 2003
- Amicus
Brief by the National Association of Criminal Defense Lawyers and the New York State Association of Criminal
Defense Lawyers, August 20, 2003
Additional filings in Padilla
v. Rumsfeld can be found here.
Related Links:
On July 12, 2002, the
federal appeals court for the Fourth Circuit reversed an earlier opinion and ruled
that enemy combatant Yasser Hamdi, a U.S. citizen, could be held without access
to counsel.