Detention of Citizens--Jose Padilla

The Fourth Circuit Court of Appeals has ruled that accused terrorist Jose Padilla can be held as an enemy combatant for as long as the war on terror lasts.^[1] Mr. Padilla has been held in a South Carolina brig for over three years, after being arrested at Chicago O’Hare airport.^[2] At the time he was arrested, the government announced that he was plotting to detonate a dirty bomb, a charge which has since been dropped.^[3] Major news organizations, however, erroneously continue to report that he is a “dirty bomber.”^[4] The facts of the case, as stipulated by the parties,^[5] are that Mr. Padilla traveled to Afghanistan, allied himself with al Qaeda, took up arms with the organization, and returned to the United States with plans to blow up apartment buildings.^[6]

Mr. Padilla’s case is interesting in many respects. This is his second time through the federal system, having already been to the US Supreme Court once. In that case, Rumsfeld v. Padilla,^[7] the Court ruled that Mr. Padilla needed to sue the brig commander where he was held and not the Secretary of Defense. The Court, because it ruled Mr. Padilla sued the incorrect person in the incorrect federal district,^[8] declined to decide whether the President had the power to detain Mr. Padilla as an enemy combatant.^[9]

This time through the courts, Mr. Padilla sued the correct person, and in the District Court of South Carolina the question presented was whether the President had the authority to detain a citizen as an enemy combatant.^[10] District Court Judge Floyd ruled that “the President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant.”^[11]

The Fourth Circuit Court of Appeals, however, disagreed. Relying primarily on Padilla I’s sister case, Hamdi v. Rumsfeld,^[12] the Court addressed the question of whether the President has the authority to designate a person as an enemy combatant and detain that individual indefinitely.^[13] It answered the question in the affirmative,^[14] finding the answer in the Authorization for Use of Military Force^[15] [hereinafter AUMF] passed on September 18, 2001.^[16]

Mr. Padilla attempted to differentiate his situation from Mr. Hamdi’s situation because the Supreme Court ruled in Hamdi that the President does indeed have the power to detain citizens as enemy combatants.^[17] He tried four approaches to differentiating his circumstances from those of Mr. Hamdi, none of which the Court found persuasive.

Narrow Circumstances
Mr. Padilla first tried to argue that his case does not fall within the “narrow circumstances” outlined in Hamdi for which detention is allowed, because he, unlike Mr. Hamdi, was captured on American soil.^[18] In other words, he attempted to argue that the Supreme Court envisioned allowing the detention of citizens only when they were captured on a foreign battlefield.^[19] The Court of Appeals rejected that argument, saying that Hamdi stood for the proposition that detention was admissible to prevent a combatant’s return to the battlefield.^[20] In other words, the location of capture is irrelevant.

Amenability to Prosecution
Mr. Padilla also argued that he should not be detained because he is amenable to prosecution.^[21] The Court rejected this argument first because it does not distinguish him from Mr. Hamdi; he, too, was amenable to prosecution.^[22] But overall, the Court felt that “the availability of criminal process cannot be determinative of the power to detain,” because prosecution may not achieve the very purpose of detaining the individual: preventing him from returning to the field of battle.^[23] Furthermore, prosecution may prevent the Executive from obtaining intelligence from the individual.^[24]

Clear Congressional Statement
Mr. Padilla also attempted to rely on Ex Parte Endo,^[25] which supports the contention that only a clear statement from Congress can authorize the individual’s detention, saying that the AUMF is not such a clear statement.^[26] The Court admits that Endo states “the law makers intended to place no greater restraint on the citizen than was clearly and unmistakenly indicated by the language [the law makers] used,”^[27] but notes that the fact that the Act at issue was “silent on detention [did] not of course mean that any power to detain [was] lacking.”^[28] The Court asserts that there is no Constitutional clear-statement requirement, but, even if there is one, the AUMF provides one.^[29]

Open Courts
Finally, Mr. Padilla argues that his detention is unlawful under Ex Parte Milligan,^[30] in which the Supreme Court held that “a United States citizen associated with an anti-Union secret society but unaffiliated with the Confederate army could not be tried by a military tribunal while access to civilian courts was open and unobstructed.”^[31] However, the Supreme Court in Hamdi stated that Milligan was fact specific, namely because Mr. Milligan was not associated with the armed forces of the enemy.^[32] Mr. Padilla cannot take advantage of the ruling in Milligan because he “associated with, and has taken up arms against the forces of the United States on behalf of, an enemy of the United States.”^[33]

Not discussed in Padilla II’s decision is the holding in Hamdi “that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”^[34]

Mr. Padilla’s lawyer has announced that a writ of certiorari will soon be filed with the Supreme Court.^[35]

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[1] Padilla v. Hanft, No. 05-6396 (4th Cir. 2005) [hereinafter Padilla II], available here. See also US Appeals Court Upholds Padilla Detention, Agence France-Presse, Sept. 9, 2005, available here [hereinafter AFP].
[2] AFP.
[3] See US Dept. of Justice, Press Release: Summary of Jose Padilla’s Activities with al Qaeda, Jun. 1, 2004, at 3, available here.
[4] See AFP; Court: Padilla Can be Held Without Charges, Foxnews.com, Sept. 9, 2005, available here; Appeals Court Rules Against Alleged ‘Dirty Bomber,’ CNN.com, Sept. 9, 2005, available here; Court Allows ‘Dirty Bomb’ Suspect to be Held, MSNBC.com, Sept. 9, 2005, available here.
[5] Padilla II at 7 n.1.
[6] Id. at 7-8.
[7] 124 S. Ct. 2711 (2004) [hereinafter Padilla I].
[8] Id. at 2727.
[9] Id. at 2715.
[10] Padilla v. Hanft, No. 2:04-2221-26AJ at 1. (D.S.C. 2005), available here.
[11] Id. at 21.
[12] 124 S. Ct. 2633 (2004).
[13] Padilla II at 6.
[14] Id.
[15] Pub. L. No. 107-40 § 2(a), 115 Stat. 224 (Sept. 18, 2001).
[16] Padilla II at 9.
[17] Hamdi at 2640.
[18] Padilla II at 14.
[19] Id.
[20] Id. at 15.
[21] Id. at 18.
[22] Id.
[23] Id. at 19.
[24] Id.
[25] 323 U.S. 283 (1944).
[26] Id. at 20.
[27] Id. (quoting Endo at 300).
[28] Id. (quoting Endo at 301).
[29] Id. at 22 (citing Hamdi at 2641).
[30] 71 U.S. (4 Wall.) 2 (1866).
[31] Padilla II at 23 (citing Milligan at 6-7, 121).
[32] Id. (citing Hamdi at 2643).
[33] Id. at 24.
[34] Hamdi at 2648.
[35] Cary O’Reilly, Bush Administration Wins Appeal in Jose Padilla Case, Bloomberg.com, Sept. 9, 2005, available here.