Second Circuit holds that alleged al Qaeda operative who was seized in the U.S. is entitled as U.S. citizen to constitutional protections and cannot be held incommunicado in military custody despite Presidential designation as "enemy combatant"
Jose Padilla, a U.S. citizen, is allegedly an al Qaeda operative who planned to set off a so-called "dirty bomb" in the U.S. (This type of bomb uses conventional explosives to disperse radioactive material.) After arresting him in May 2002 at Chicago's O'Hare airport on a flight from Pakistan, authorities initially held him as a "material witness" for the New York federal grand jury that was looking into the September 11, 2001, terrorist attacks. The government then moved Padilla to New York, where the court appointed an attorney to represent him.
Shortly before a district court was to rule on counsel's motion to vacate the material witness warrant, President Bush designated him an "enemy combatant." Since that time, the government has been holding Padilla incommunicado on a naval vessel in South Carolina. Padilla's counsel submitted a habeas corpus petition as his "next friend."
The district court found that the Constitution and statutory law give the President the authority to detain U.S. citizens as enemy combatants, but that he should allow Padilla to consult with counsel and to present evidence to rebut this characterization. The following interlocutory appeal by the government ensued. The U.S. Court of Appeals for the Second Circuit affirms in part and reverses in part.
The Court remands the case to the district court to issue the writ of habeas corpus to release Padilla from military custody within 30 days. The Government may then take further action to the extent based on legislatively conferred authority. For example, the government may transfer him to the appropriate civilian authorities pending criminal charges, or it may continue to hold him as a material witness in connection with the 9/11 grand jury proceedings. In any case, Padilla will be entitled to constitutional protections like any other citizen. Congress has not authorized Padilla's detention and, without such authorization, the President lacks the power under Article II of the Constitution to detain a U.S. citizen seized on U.S. soil as an "enemy combatant."
Where, as here, the President's power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, the Court decides that congress must expressly authorize detentions of American citizens on American soil. Moreover, 18 U.S.C. Section 4001(a) (2000) (the Non-Detention Act) bars all such deprivations of a citizen's liberty absent such empowerment. Admittedly, Congress did pass an Authorization for Use of Military Force Joint Resolution, Pub.L. No. 107-40, 115 Stat. 224 (2001) (Joint Resolution) shortly after the 9/11 attacks. This Resolution, however, does not permit such detentions and there is no other exception to Section 4001(a).
"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 (1952) (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." [Slip op. 6-7]
In the Court's view, Justice Jackson's reasoning in his Youngstown concurrence provides the relevant conceptual framework for analyzing this issue. The President's authority is at its zenith when he acts pursuant to an express or implied authorization from Congress. In the absence of such congressional authority, he can only rely on his own independent constitutional powers. There may, however, be twilight zones involving a concurrent authority of Congress and the President. Finally, the President's authority is at its nadir when he acts contrary to Congress' express or implied will. There, he exercises only his own constitutional powers minus any constitutional powers of Congress over the matter.
Based on the Constitution and case law interpreting it, the Court rejects the Government's argument that the President has inherent constitutional powers to detain U.S. citizens under these circumstances. The question then becomes whether Congress has authorized such detentions.
Since the Non-Detention Act applies to military detentions such as Padilla's, the President would need specific statutory authorization to detain him. The government contended that the Joint Resolution and 10 U.S.C. Section 956(5) [on funding for military detentions] authorize the detention of enemy combatants.
"We disagree with the assumption that the authority to use military force against [organizations like al Qaeda] includes the authority to detain American citizens seized on American soil and not actively engaged in combat. First, we note that the Joint Resolution contains no language authorizing detention. ..."
"Because the government seeks to read into the Joint Resolution authority to detain American citizens on American soil, we interpret its language in light of the principles enunciated in Ex parte Endo, 323 U.S. at 298-300. The Endo Court first recognized that "the Constitution when it committed to the Executive and Congress the exercise of the war power necessarily gave them wide scope for the exercise of judgment and discretion so that war might be waged effectively and successfully.' Id. at 298-299. ... The Court added: "We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.' Id. (emphasis added)."
"The plain language of the Joint Resolution contains nothing authorizing the detention of American citizens captured on United States soil, much less the express authorization required by Section 4001(a) and the "clear,' "unmistakable' language required by Endo. While it may be possible to infer a power of detention from the Joint Resolution in the battlefield context where detentions are necessary to carry out the war, there is no reason to suspect from the language of the Joint Resolution that Congress believed it would be authorizing the detention of an American citizen already held in a federal correctional institution and not "arrayed against our troops' in the field of battle. Hamdi III, 316 F.3d at 467." [Slip op. 78-80]
Nor is this detention authorized by 10 U.S.C. Section 956(5). This Section authorizes nothing beyond the expenditure of money. Under Endo, any authorization for detaining U.S. citizens would have to be "clear" and "unmistakable." As a result, the President's inherent constitutional powers, in the domestic context, do not extend to the detention of U.S. citizens seized within the U.S. away from a combat zone simply by labeling them "enemy combatants."
Citation: Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003).
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