Professor: Combatant decision 'painful' for Bush
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Ruth Wedgwood
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A federal appeals court has ruled that a U.S. citizen suspected in a 'dirty bomb' plot cannot be held as an enemy combatant. CNN's Deborah Feyerick explains. (December 18)
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(CNN) -- A federal appeals court ruled Thursday that the president does not have the authority to detain an American citizen seized on U.S. soil as an enemy combatant. The decision gives the U.S. government 30 days to release Jose Padilla, who has been in military custody since he was arrested in May 2002 on accusations he was planning to detonate a "dirty bomb" inside the United States.
Ruth Wedgwood, professor of international law at the School of Advanced International Studies at Johns Hopkins University, joined CNN anchor Wolf Blitzer to discuss the legal basis of the court's decision, as well as to explain some of the legal issues surrounding a possible trial of former Iraqi leader Saddam Hussein, who was captured Saturday in Iraq.
WOLF BLITZER, CNN ANCHOR: Professor, thanks very much for joining us. I want to get to Saddam Hussein's fate shortly, but let's talk about this news that we're getting right now about Jose Padilla. [It's] a major blow to the Bush administration that he can't be held as an enemy combatant. They either have to release him or they have to move him to the civil courts.
RUTH WEDGWOOD, CONSTITUTIONAL LAWYER: It is a painful decision for the Bush administration. It says that the president has to go to Congress to get a specific statute authorizing the detention of someone like Padilla, who the president had called an enemy combatant. And the court says, basically, Padilla was not carrying explosives or carrying a gun, carrying a physical weapon. The fact that he was a sort of forward target-spotter was not sufficient for the court, because it says the U.S. is not a zone of combat.
BLITZER: In this two-to-one decision, though, they did say there was ample evidence against [Padilla].
WEDGWOOD: They say the government has good reason to suspect him of involvement in a terrorist plot. And of course, the Congress had authorized the president to use force against combatants in response to 9/11, wherever they were located. But the court is distinguishing between using force against a combatant and detaining a combatant if he's a citizen in the U.S. The irony, though, is that if, in fact, they had arrested Padilla in Pakistan, before he got on the airplane -- and he was monitored all the way through in his flight by federal marshals -- you might have had a different outcome.
BLITZER: Because he was on foreign soil, as opposed to U.S. soil. The fact that an American citizen arrested at O'Hare [airport], in the United States, the territorial boundaries of the United States, that changes the equation as far as the court is concerned.
WEDGWOOD: The court is saying that Congress, when it passed something called the Non-Detention Act in 1971, didn't contemplate allowing detention of any American citizens, even in the post 9/11.
BLITZER: So what do you think the Bush administration does now? They can appeal this decision or they can comply.
WEDGWOOD: Well, they will move for reconsideration before the 2nd Circuit Court of Appeals as a whole. They will, I think, get busy probably talking to Congress about getting that kind of specific authorization, which we had in the Korean War in 1950.
BLITZER: Where U.S. citizens are allowed to be held as enemy combatants even if they were arrested in the United States?
WEDGWOOD: If they're shown to be, by some kind of probable cause or reasonable cause, in cahoots with the foreign terrorists.
BLITZER: There are two U.S. citizens being held as enemy combatants. Yasser Hamdi, who was born in Louisiana, is the second one. But he is being treated differently.
WEDGWOOD: Hamdi is an easier case on the facts, in a sense, because he was caught with a gun in his hand on the battlefield in Afghanistan. And before, the Circuit Court of Appeals ruled that he was an enemy combatant, that he was being held with a threshold showing of some evidence, he had a right to habeas corpus. He had his case brought to court, but the court was satisfied that he met the criteria for someone who really is fighting against the U.S.
BLITZER: It's interesting, because he was captured in Afghanistan, brought to Guantanamo Bay, the U.S. naval base, the detention center at Guantanamo Bay. But when they realized he was born in the United States, they took the step and brought him actually to the physical part of the United States.
WEDGWOOD: He probably would have had habeas corpus anyway, because there's a general view that habeas corpus follows citizenship. But you're right; this was kind of an act that was not required of them when they chose to do it.
BLITZER: All right. Let's move on and talk a little about Saddam Hussein right now. Your assessment is what, right now? What is his actual status, legally speaking?
WEDGWOOD: Well, he has belt, garter, suspenders and then some. He could be held any of three or four different ways.
He could be called a prisoner of war if he is directing the combatant operations and we think the war is still ongoing in Iraq. He could be held as the hostile civilian president of a country in which we're still in a conflict situation. Under the fourth Geneva Convention, if you have anybody who is definitely suspected of hostile activity against the occupying authority, he can be interned indefinitely. So there are a number of ways you could hold him.
BLITZER: But the government has not yet specifically said what his status is, even though they say he will be treated according to the Geneva Convention?
WEDGWOOD Yes. They're doing an as-if dodge until they make up their minds. It basically says we will give you what POWs are entitled to while we think about your legal status.
BLITZER: And assuming he still is in Iraq -- all indications are he is being held in an undisclosed location in Iraq -- is there any danger that if the U.S. wants to make sure that they can control what is going on with Saddam Hussein, that they leave him there? The concern is that, what if the Iraqi authority says we want to take over custody of this guy? And if he is in Iraq, the U.S. may be hard-pressed to say, you know what, we have to let them have him.
WEDGWOOD: Well, that would be politically ugly, it's true, because we want to get as much sovereignty visibly and substantively to the Governing Council as we can. However, we still are the occupying power. And as someone who has been fighting actively against our troops and directing attacks -- as may be the case -- we would have a right to intern him.
BLITZER: Here are a couple of e-mails. Dan in Kentucky wants to know this, Professor: "Since George Bush cited Hussein's violations of U.N. resolutions for the justification of going to war, then logically the U.N. should be given the task of trying him for those violations. Once that is concluded, then the Iraqi people could try him."
Does Dan have a point?
WEDGWOOD: Well, there are a couple of complications in going to the Security Council if you wanted to create a new, so-called ad hoc tribunal on the model of the course that were done for Yugoslavia and Rwanda. One is you have to go to the Security Council. And as we've seen in the past, the politics of the French and the Germans and the Russians ...
BLITZER: Because right now there is no authorization to send them to The Hague.
WEDGWOOD: There's no Hague court. There's no court in The Hague that has jurisdiction over it.
BLITZER: The war crimes tribunal -- The Hague only deals with the cases in the Balkans?
WEDGWOOD: There's the Yugoslavia court, there's the Rwanda court in Tanzania. There's a new ICC, which is only prospective from 2002, and we don't belong to it.
BLITZER: So to get jurisdiction, you need the Security Council to pass another resolution?
WEDGWOOD: As we say in English, the French willing, yes.
BLITZER: Yes, the French willing.
Let's move on. Jim in Toronto wants to know this: "If there is a trial, will U.S. officials tolerate a defense that might present a long paper and chemical trail that goes back to the U.S.'s logistical support for Saddam when he was a friend of America and a foe of Iran?" That's referring to the 1980s. "At that time, America looked away while their friend was dealing with so-called internal matters."
WEDGWOOD: Well, I suspect that Saddam Hussein, like [Slobodan] Milosevic in The Hague, will try to do kind of a graymail-blackmail defense ... [and say] I was your SOB in the '80s.
That is not a legal defense. I think he may well exaggerate the facts of the matter, and a strong trial judge would rule that out of order. One of the dangers in the trial, though, is that Saddam Hussein will try to use this as a bully pulpit to make his case for further future Ba'athist rule.
BLITZER: For propaganda purposes.
