Court: President cannot detain U.S. citizen as enemy combatant
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Jose Padilla
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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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NEW YORK (CNN) -- In a setback to the Bush administration's anti-terrorism policies, a federal appeals court ruled Thursday that the president does not have the power to detain an American citizen seized on U.S. soil as an enemy combatant.
In a 75-page decision, a three-judge panel of the 2nd U.S. Circuit Court of Appeals voted 2-1 that the U.S. government must release Jose Padilla from military custody within 30 days.
If appropriate, Padilla also can be held as a material witness in connection with grand jury proceedings, the court said.
"The government can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him," the order said.
Padilla has been held in a South Carolina naval brig for the past year and a half.
"It's reassuring that constitutional protections that we are all entitled to as citizens were confirmed. And we look forward to meeting our client," said attorney Donna Newman.
The Justice Department -- at the direction of President Bush -- said a stay and further judicial review will be sought.
"In times of war, the president must have the authority to act when an individual associated with our nation's enemies enters our country to endanger American lives," said department spokesman Mark Corallo.
In November, the appeals court panel cast doubt Monday on whether the Bush administration had the authority to designate Padilla an "enemy combatant" and detain him indefinitely without criminal charges. (Full story)
Some legal analysts have said the Padilla case may eventually head to the Supreme Court. The government has maintained that Bush's military moves in the war on terrorism were not subject to judicial review.
Padilla, 33, accused of being an al Qaeda operative, has been in federal custody since he arrived in Chicago, Illinois, in May 2002 on a flight from Pakistan. He was initially arrested as a material witness for the grand jury probe into the September 11, 2001, terrorist attacks.
A former gang member, Padilla is accused of plotting to detonate a "dirty bomb," which uses conventional explosives to disperse radioactive materials. The government said he had proposed the bomb plot to Abu Zubaydah, then al Qaeda's top terrorism coordinator. Zubaydah was arrested in Pakistan in March 2002.
The government maintains Padilla received explosives training in al Qaeda camps inside Afghanistan and plotted with the group to bomb hotels and gas stations, and to detonate a radioactive "dirty bomb" -- a conventional explosive laced with radioactive material -- inside the United States.
Defense attorneys maintain Padilla traveled to Chicago to visit his son.
The government never levied criminal charges against Padilla before President Bush declared in June 2002 that he represented a "grave danger to the national security" of the nation, reclassifying him as an enemy combatant, and transferring him to military custody, where he has remained incommunicado.
"As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," the court said in its majority opinion.
 ... presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated ... to share them with Congress. 
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-- Appeals court panel decision
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"But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress," it added.
In a dissenting opinion, District Judge Richard C. Wesley said the president as commander in chief "has the inherent authority to thwart acts of belligerency at home or abroad that would do harm to United States citizens."
Marvin Smilon, a spokesman for interim U.S. Attorney David Kelley, said he could not comment, The Associated Press reported. In Washington, Justice Department spokesman Mark Corallo said the agency was reviewing the decision.
Chris Dunn, a staff attorney with the New York Civil Liberties Union, called the ruling "historic," according to The Associated Press.
"It's a repudiation of the Bush administration's attempt to close the federal courts to those accused of terrorism," he said. The group had submitted a legal brief supporting Padilla.
Two other people have been designated enemy combatants since the 2001 terrorist attacks: Ali Saleh Kahlah Al-Marri, a citizen of Qatar who has been accused of being an al Qaeda sleeper agent, and Esam Hamdi, a Louisiana native captured during the fighting in Afghanistan.
In its ruling Thursday, the court said it was not addressing the detention of any U.S. citizens seized within a zone of combat in Afghanistan, the AP reported.
Copyright 2003 CNN. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
Associated Press contributed to this report.
