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:


Briefs filed in the federal appeals court for the Second Circuit:

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.