- The Washington Times - Thursday, December 18, 2003

Two federal courts yesterday rebuked the Bush administration, ruling that prisoners at Guantanamo Bay Naval Base should have access to attorneys and U.S. courts, and separately deciding that President Bush had no authority to detain an American citizen arrested on U.S. soil as an enemy combatant.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco described the administration’s detention of 660 terrorism suspects at Guantanamo, arrested by U.S. military authorities in Afghanistan, as “running roughshod over the rights of citizens and aliens alike.”

In a 2-1 decision, on a petition filed by a relative of a captured Libyan, the panel said it was the “obligation” of the judicial branch to “ensure the preservation of our constitutional values.”

“We cannot simply accept the government’s position 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,” said Judge Stephen Reinhardt, who was appointed by President Carter.

A separate 2-1 ruling by a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York ordered the government to either release Jose Padilla within 30 days or charge him in a civilian court.

Padilla, a U.S. citizen who converted to Islam and took the name Abullah al-Muhajir, is suspected in an al Qaeda terrorist scheme to detonate in the United States a “dirty bomb,” which spreads deadly radioactive material.

The New York panel said Padilla’s detention was not authorized by Congress and, as such, Mr. Bush lacked the authority to designate him an enemy combatant. The panel said Padilla, 31, could not be held indefinitely at the Navy brig in Charleston, S.C., without charges or access to an attorney.

“The president does not have the power to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat,” wrote Judges Rosemary S. Pooler and Barrington D. Parker Jr., both of whom were appointed by President Clinton.

“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,” they said. But “this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated … to share them with Congress.”

Judge Richard C. Wesley, appointed by Mr. Bush earlier this year, dissented. He said the wartime commander in chief “has the inherent authority to thwart acts of belligerency at home or abroad that would do harm to United States citizens.”

White House spokesman Scott McClellan described the Padilla ruling as “troubling and flawed,” and said the administration would seek a stay of the order and further judicial review.

“The president’s most solemn obligation is protecting the American people,” he said.

The Justice Department is expected to appeal both rulings.

The Padilla order could also have a major impact on the pending case against Zacarias Moussaoui, the only person charged in the September 11 attacks.

Because of national security concerns, the government has defied a court order giving Moussaoui the right to question al Qaeda detainees, setting up the possibility that he might also be designated an enemy combatant if a higher court upholds his right to the interviews.

The ruling in the Padilla case came just two days after the Justice Department said the former Chicago gang member had given federal authorities valuable intelligence information and would not have access to an attorney until his interrogation ends.

Federal authorities believe Padilla met with leaders of Osama bin Laden’s terror network during trips to Pakistan and Afghanistan after the September 11 attacks and say his continued detention is in the interest of national security.

The Pentagon also announced yesterday it had appointed a military attorney to represent a second terrorism suspect held at Guantanamo, Salim Ahmed Hamdan of Yemen.

He joins Australian David Hicks as the only two detainees to receive legal representation.

The American Civil Liberties Union praised the Padilla ruling, calling it a “firm assertion” that the president cannot assume unilateral powers — even in times of national security crises.

“Today’s ruling is a historic reassertion of the legislative and judicial role in providing a check on excessive executive-branch authority,” said Anthony D. Romero, ACLU executive director. “The president cannot step above the law by a stroke of his pen, especially in times of war or national crisis when our system of equal and dispassionate justice is all the more essential.”

Rep. Adam B. Schiff, California Democrat and author of the Detention of Enemy Combatants Act, also lauded the Padilla ruling.

“No one branch of government should have the sole power to determine whether to incarcerate an American citizen — perhaps indefinitely — without any form of judicial review or access to counsel,” Mr. Schiff said.

The pending Detention of Enemy Combatants Act would permit the president to detain enemy combatants, providing that due process is guaranteed for detainees who are U.S. citizens.

William F. Schulz, executive director of Amnesty International USA, welcomed the Padilla ruling but said he was “troubled” it was not made “in recognition of basic human rights principles or constitutionally guaranteed protections.”

“The court has clearly said the president cannot unilaterally detain individuals without access to a lawyer, but it also laid the groundwork for future detentions in denial of basic rights, providing he has permission from Congress,” he said.

Stephen Dinan contributed to this report.

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