veiled4allah: some victories for the rule of law

We also conclude that Padilla’s detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat. As this Court sits only a short distance from where the World Trade Center once 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. 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.

Where, as here, the President’s power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. ? 4001(a) (2000) (the “Non-Detention Act”) prohibits such detentions absent specific congressional authorization.

Congress’s Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 (2001) (“Joint Resolution”), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists. In light of this express prohibition, the government must undertake to show that Padilla’s detention can nonetheless be grounded in the President’s inherent constitutional powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (Jackson, J., concurring). We conclude that it has not made this showing. In reaching this conclusion, we do not address the detention of an American citizen seized within a zone of combat in Afghanistan, such as the court confronted in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) (“Hamdi III”). Nor do we express any opinion as to the hypothetical situation of a congressionally authorized detention of an American citizen.

Accordingly, we remand to the District Court with instructions to issue a writ of habeas corpus directing Secretary Rumsfeld to release Padilla from military custody within 30 days, at which point the government can act within its legislatively conferred authority to take further action. For example, Padilla can be transferred to the appropriate civilian authorities who can bring criminal charges against him. If appropriate, he can also be held as a material witness in connection with grand jury proceedings. See United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003). Under any scenario, Padilla will be entitled to the constitutional protections extended to other citizens. (emphasis added)

A federal appeals court ruled Thursday for the first time that prisoners held at Guantanamo Bay Naval Base in Cuba should have access to lawyers and the American court system. The 9th U.S. Circuit Court of Appeals' 2-1 decision was a rebuke to the Bush Administration.

The administration maintains that because the 660 men held there were picked up overseas on suspicion of terrorism and are being held on foreign land, they may be detained indefinitely without charges or trial.

The Supreme Court last month agreed to decide whether the detainees, picked up in Afghanistan and Pakistan, should have access to the courts. The justices agreed to hear that case after the U.S. Court of Appeals for the District of Columbia ruled that the prisoners had no rights to the American legal system.

The San Francisco appeals court, ruling Thursday on a petition from a relative of a Libyan the U.S. military captured in Afghanistan, said the Bush administration's indefinite detention of the men runs contrary to American ideals.

"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," Judge Stephen Reinhardt wrote for the majority.

"We cannot simply accept the government's position," Reinhardt continued, "that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement."

Foreigners held at a federal prison in Brooklyn after the Sept. 11, 2001 attacks suffered verbal and physical abuse, with officers slamming them against the wall and twisting their arms and hands, the U.S. Justice Department's inspector general said on Thursday. Inspector General Glenn Fine said in a 47-page report that officers also stepped on the leg-restraint chains of the detainees and punished them by keeping them restrained for long periods of time.

Videotapes showed that prison staff members slammed and pressed detainees against the wall by their heads or necks. The officers denied that it ever occurred, the report said...

...It said the videotapes also showed that some staff members at the federal prison misused strip searches and restraints to punish detainees, and that officers improperly recorded meetings between the detainees and their lawyers.