[Padilla v. Rumsfeld Majority Opinion / US Court of Appeals for the Second Circuit 18dec03]
Defeats in two federal appeals courts dealt the strongest challenge yet to the Bush administration's hard-charging post-Sept. 11 policy on the detention of suspected terrorists. The rulings come as the White House already faces a Supreme Court test and the defections of two architects of the policy who now say it has gone too far.
The administration had been scrambling to soften its policy of holding detainees suspected of terrorism indefinitely while denying contact with lawyers or other ordinary aspects of American due process. In the face of mounting criticism at home and abroad, the Defense Department has given three detainees access to lawyers this month, the latest just Thursday as part of proceeding toward a military trial. The U.S. also has reassured some allies that it won't pursue the death penalty against detainees, and told others that those nations may soon take custody of their citizens being held incommunicado at the U.S. detention center in Guantanamo Bay, Cuba.
The U.S. moves signal growing recognition that its treatment of such prisoners presents a deepening political and legal problem. But Thursday's sharply worded rulings were likely to put the White House further on the defensive. In two separate 2-1 decisions, appeals-court panels in New York and San Francisco called on the U.S. to grant additional rights to suspects it has been holding indefinitely.
Although the cases involve different legal questions and apply to distinct types of prisoners -- U.S. citizens arrested at home, or foreigners held at Guantanamo -- together they represent a broad judicial rebuke to the administration's tactics.
In New York, the Second Circuit Court of Appeals gave the government 30 days to send suspected "dirty bomber" José Padilla to the civilian justice system, or else release him outright. The court said Mr. Padilla's treatment violated a 1971 law enacted specifically to help avoid situations similar to the World War II internment of Japanese-Americans. That law, which overturned the 1950 Emergency Detention Act, barred the government from jailing citizens without explicit legal authority.
Mr. Padilla was arrested in May 2002 and held secretly as a material witness in the grand-jury investigation of the attacks on the World Trade Center and the Pentagon. Federal authorities say he had met with al Qaeda leaders and worked on a plan to detonate a radiological device, or dirty bomb, in an American city. In June 2002, President Bush declared him an enemy combatant and had him transferred to military custody.
San Francisco's Ninth Circuit Court of Appeals, meanwhile, ruled that holding some 660 foreigners at Guantanamo without any opportunity for them to challenge the grounds was unconstitutional and could be contested in federal courts. "Even in times of national emergency -- indeed, particularly in such times -- 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," wrote Judge Stephen Reinhardt, one of the bench's most outspoken liberals, for the majority.
That decision conflicts with a ruling by the federal circuit court for the District of Columbia. In a separate case, it barred Guantanamo detainees from appealing to U.S. courts, saying Guantanamo Bay's legal status -- defined by a 1903 treaty with Cuba's pre-Castro government -- put it outside the jurisdiction of federal courts, as the Bush administration contends.
The latest rulings join the rush of antiterrorism cases approaching the Supreme Court, which more than two years after the attacks of Sept. 11, 2001, has yet to decide where traditional civil liberties must give way to claims of national security. The high court already has agreed to hear an appeal of the District of Columbia Circuit's Guantanamo decision. And it is considering whether to take an appeal for Yaser Esam Hamdi, a U.S.-born man whose detention as an "enemy combatant" was upheld by the Fourth Circuit Court of Appeals in Richmond, Va.
In the meantime, the Defense Department two weeks ago granted Mr. Hamdi access to a lawyer in the Navy brig in Charleston where he is being held. Pentagon officials last week allowed a civilian lawyer for David Hicks, an Australian captured during the Afghan war and held for nearly two years, to travel to Guantanamo to meet his client, the first time a lawyer has been permitted there. Thursday, the Pentagon announced the appointment of a military lawyer for a second Guantanamo detainee, Salim Ahmed Hamdan. President Bush has declared both Mr. Hicks and Mr. Hamdan eligible for trial before military tribunal, although no charges have been filed. Only non-U.S. citizens can be hauled before the tribunals, under Mr. Bush's November 2001 order authorizing the military panels.
Pentagon officials say that they are preparing for a large release of prisoners on top of at least 84 detainees who have already been freed. But U.S. officials familiar with the internal discussions say that such a determination has been delayed by the Pentagon's insistence that many in the next group of returnees, believed to number more than 100, should be imprisoned by their home countries. The administration wants to ensure those prisoners are prosecuted, officials said, in part because it would vindicate the decision to hold them for the past two years.
Last month, Defense Secretary Donald Rumsfeld sent letters to Kuwait and a handful of other governments asking how they would treat their citizens if the U.S. agreed to return them, according to a U.S. official. The countries were chosen because the U.S. considered them the most likely to agree, an official said.
At least some countries refused to prosecute their citizens unless the U.S. supplied incriminating evidence linking them to terrorism or other crimes, a U.S. official said. Lacking such evidence, they said they would free the returnees.
The Bush administration criticized the rulings by the appellate courts and vowed to defend its policies. Scott McClellan, the White House spokesman, called the Second Circuit decision "flawed" and said President Bush had instructed government lawyers to seek a stay pending an appeal. The government can ask for rehearings before the full circuit courts or seek review by the Supreme Court.
But the White House is coming under increased pressure both from friends and adversaries over how it is balancing the fight against terrorism and the preservation of civil liberties. Two authors of the Bush administration's policies have publicly suggested the indefinite detentions need to be formally reviewed. The two former assistant attorneys general -- Michael Chertoff, now a federal appeals judge in Philadelphia, and Viet Dinh, a law professor at Georgetown University -- have published articles raising that issue.
Other members of Mr. Bush's own party have begun criticizing the administration over the status of the Guantanamo detainees. Republican Sens. John McCain of Arizona and Lindsey Graham of South Carolina, along with Democrat Maria Cantwell of Washington, sent Mr. Rumsfeld a letter last week calling for a decision "in the very near term either to treat and process the detainees as war criminals or to return them to their countries for appropriate judicial action."
The Second Circuit opinion squarely rejected the administration's sweeping claim of executive authority in the wake of the Sept. 11 attacks. The White House asserted that the president's power as commander-in-chief, underscored by a Sept. 18, 2001, congressional resolution authorizing the attack on Afghanistan's Taliban regime, allowed him to lock up anyone deemed an enemy combatant.
As precedent, the government cited World War II cases in which U.S. citizens fighting for the Axis powers were held without trial as prisoners of war or tried and sentenced by military commissions.
The administration has sought to avoid the involvement of either the Congress or the courts, asserting that the president's inherent powers obviated the need for new legislation and arguing that courts have no place second-guessing the judgment of military authorities.
The Second Circuit said the question amounted to "whether the Constitution gives the president the power to detain an American citizen seized in this country until the war with al Qaeda ends." The answer, according to the decision, is no, because the president's power was circumscribed by the 1971 Non-Detention Act, which says that citizens may not be "imprisoned or otherwise detained ... except pursuant to an Act of Congress."
Legal experts were split on how the issue would fare at the Supreme Court.
Philip Heymann, a professor at the Harvard Law School, called the policy of detaining Americans arrested in the U.S. as enemy combatants "the single most dangerous and needless power claimed by the administration." But he noted the Second Circuit addressed only the more limited question of separation of powers among branches of government, creating "the hardest way possible for the executive to win at the Supreme Court."
John Yoo, a former Justice Department official who helped design the Bush administration's detention policy and is a law professor at the University of California, Berkeley, said the majority on that panel erred by trying "to turn the clock back to Sept. 10, 2001. They think the best way to handle terrorism is the way we used to, as simple crime."
--Gary Fields contributed to this article
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