Posted: 9/9/2005 11:41:16 AM EDT
www.bloomberg.com/apps/news?pid=10000103&sid=aeUXbHzu7XHU&refer=us Bush Administration Wins Appeal in Jose Padilla Case (Update2)
Sept. 9 (Bloomberg) -- The Bush administration can indefinitely detain a U.S. citizen it determines to be an enemy combatant in the war on terrorism, a federal appeals court ruled.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, unanimously ruled against Jose Padilla, the only U.S. citizen now held as an enemy combatant. Padilla, jailed for three years without a trial, fought against U.S. forces in Afghanistan and was recruited by al-Qaeda to carry out terrorist attacks inside the U.S., the administration says. Today's decision reverses a federal judge's ruling that he can't be held without trial.
``We conclude that the president does possess such authority,'' which was granted by Congress in the aftermath of the Sept. 11 attacks, the court said.
Padilla, a Muslim convert and former gang member, was arrested in Chicago's O'Hare International Airport in May 2002. He was designated an enemy combatant by President George W. Bush one month later and was sent to a Navy jail in South Carolina, where he remains. The Bush administration says such detentions are necessary to prevent terrorism in the U.S.
A federal judge ruled in March that the U.S. must charge Padilla with a crime or release him within 45 days. Attorney General Alberto Gonzales said at the time that the U.S. has the right to hold suspects in the war on terrorism ``for the duration of hostilities.''
The case is a test of the government's power to detain U.S. citizens without trial and will return to the Supreme Court, according to Andrew Patel, a lawyer for Padilla.
Appeal
``An appeal is certain,'' Patel said in an interview from his office in New York today. ``We think the appeals court decision is incorrect, and we think it is contrary to what the Supreme Court said'' in the case of Yaser Esam Hamdi.
Hamdi, the only other U.S. citizen ever held as an enemy combatant, was released and flown to Saudi Arabia last year. The Supreme Court ruled 5-4 that Hamdi could challenge his detention in U.S. courts or before a ``neutral decisionmaker,'' including a military tribunal.
Carl Tobias, a professor of law at the University of Virginia in Richmond, said the success of an appeal by Padilla to the Supreme Court will hinge on whoever replaces retiring Justice Sandra Day O'Connor.
Swing Vote
If Judge John G. Roberts is confirmed as chief justice, ``he would likely vote'' to uphold presidential power as the late Chief Justice William Rehnquist did in the Hamdi case, making O'Connor's replacement the swing vote, Tobias said.
Bush initially nominated Roberts to replace O'Connor but then named him to become chief justice after Rehnquist died Sept. 3. Roberts's confirmation hearings before the Senate begin Sept. 12.
Today's appeals court opinion was written by Judge Michael Luttig, considered to be on Bush's shortlist of candidates to replace O'Connor.
Luttig wrote that, given the facts in the case, Padilla ``unquestionably'' qualifies as an enemy combatant and that the court could discern no difference between Padilla, a U.S. citizen arrested on U.S. soil, and Hamdi, a U.S. citizen captured by U.S. forces in Afghanistan.
``Padilla maintains that capture on a foreign battlefield was one of the `narrow circumstances' to which the plurality in Hamdi confined its opinion. We disagree,'' Luttig said. ``Padilla poses the same threat of returning to the battlefield as Hamdi,'' he said.
The American Civil Liberties Union said it is ``disappointed'' with today's decision.
``Contrary to the court's opinion, there is very little reason to believe that Congress either anticipated or endorsed the military detention of U.S. citizens arrested in the U.S.,'' the ACLU said in a statement. ``So long as the civilian courts are open and functioning, American citizens arrested in the U.S. are entitled to due process protections.''
The case is Padilla v. Hanft, 05-6396.
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