- The Washington Times - Friday, September 9, 2005

A federal appeals court panel yesterday ruled that the president has the authority to indefinitely detain a U.S. citizen as an enemy combatant, reversing a lower court order that the government either charge or release suspected would-be “dirty bomber” Jose Padilla.

In a major victory for the Bush administration, the three-judge panel of the U.S. 4th Circuit Court of Appeals in Richmond said Congress had given the president “all powers necessary and appropriate” to protect American citizens from terrorist acts by those who attacked the United States on September 11.

“As would be expected, and as the Supreme Court has held, those powers include the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the Taliban regime, who took up arms against this nation in its war against these enemies, and who entered the United States for the avowed purpose of further prosecuting that war by attacking American citizens and targets on our own soil,” wrote appeals court Judge J. Michael Luttig in the unanimous ruling.

Padilla’s attorney, Andrew Patel, said the ruling would probably be appealed to the U.S. Supreme Court, adding that the decision could have grave implications for all Americans.

“It’s a matter of how paranoid you are,” Mr. Patel said. “What it could mean is that the president conceivably could sign a piece of paper when he has hearsay information that somebody has done something he doesn’t like and send them to jail — without a hearing [or] a trial.”

Judge Luttig, appointed to the court by President George Bush in 1991 and on the shortlist of judges being considered by President Bush to fill the current Supreme Court vacancy, wrote that Congress understood that without such authority, “the president could well be unable to protect American citizens from the very kind of savage attack that occurred four years ago almost to the day.”

He was joined by Judges M. Blane Michael and William B. Traxler Jr., both of whom were named to the bench by President Clinton.

In March, U.S. District Judge Henry Floyd in Spartanburg, S.C., ruled that the U.S. government could not hold Padilla as an enemy combatant without charging him with a crime, calling the case a “law enforcement matter, not a military matter.”

Judge Floyd gave the government 45 days to either charge or release Padilla — a ruling that was challenged by the Justice Department, which said Padilla represented “a continuing, present and grave danger to the national security of the United States.”

The appeals court panel agreed, saying the detention of U.S. citizens determined to be enemy combatants by the president in the exercise of his authority as commander in chief “in time of war and of grave public danger … are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.”

“Padilla poses the requisite threat of return to battle in the ongoing armed conflict between the United States and al Qaeda in Afghanistan, and that his detention is authorized as a ‘fundamental incident of waging war’ in order ‘to prevent a combatant’s return to the battlefield,’ ” the appeals court said.

Padilla, a Muslim convert also known as Abdullah al Muhajir, is a former Chicago gang member held as an enemy combatant in a plot to detonate a “dirty bomb” in the United States and set off other deadly explosives in high-rise apartment buildings.

He was arrested by FBI agents on a material-witness warrant in May 2002 at Chicago’s O’Hare International Airport after a flight from Pakistan. At the time of his arrest, the Justice Department said he was carrying $10,000 in U.S. currency he had received from his al Qaeda handlers.

Federal prosecutors said Padilla was directed by now-deceased al Qaeda military chief Mohammed Atef in 2001 to take part in “an operation to blow up apartment buildings in the United States with natural gas,” and that Padilla accepted the task.