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Padilla Ordered Released; Government will appeal
Posted by: Dale Franks on Monday, February 28, 2005

"Dirty bomber" Jose Padilla, who has been held without charges or trial for two years by the US Government has ordered the government to release him.
A federal judge in Spartanburg has ordered that an American citizen held as an enemy combatant in a Navy brig in Charleston should be charged with a crime or released.

U.S. District Judge Henry F. Floyd ruled Monday that the president of the United States does not have the authority to order Jose Padilla to be held indefinitely without being charged.

"If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem," he wrote.

In the ruling, Floyd said that three court cases that the government used to make its claim did not sufficiently apply to Padilla's case.

Floyd wrote that, in essence, "the detention of a United States citizen by the military is disallowed without explicit Congressional authorization."
The full decision can be read here.

Essentially, the government argued that both Hamdi v. Rumsfeld [124 S.Ct. 2633 (2004)] and Quirin [317 U.S.] "reaffirm the military’s long-settled authority--independent of and distinct from the criminal process--to detain enemy combatants for the duration of a given armed conflict, including the current conflict against al Qaeda."

Judge Floyd found that argument less than compelling. Mr. Hamdi was caught with a gun in his hands on the battlefield in Afghanistan. His detentions was clearly incident to combat, as was his detention. Mr. Padilla, on the other hand, was captured and detained in an Airport, unarmed, on US soil. Applying Hamdi to this set of facts is a stretch. As Judge Floyd puts it:
Thus, it is true that, under some circumstances, such as those present in Hamdi, the President can indeed hold an United States citizen as an enemy combatant. Just because something is sometimes true, however, does not mean that it is always true. The facts in this action bear out that truth.

In the instant case, Respondent would have this Court find more similarities between Petitioner here and the petitioner in Hamdi than actually exist...

There were no impediments whatsoever to the Government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing. Also at the Government’s disposal was the material witness warrant. In fact, the issuance of a material witness warrant was the tool that the law enforcement officers used to thwart Petitioner’s alleged terrorist plans. Therefore, since Petitioner’s alleged terrorist plans were thwarted when he was arrested on the material witness warrant, the Court finds that the President’s subsequent decision to detain Petitioner as an enemy combatant was neither necessary nor appropriate.
I agree fully with Judge Floyd. Mr. Padilla could have been arraigned, tried and convicted, assuming, of course, the government had enough evidence to procure a conviction. That the government did not choose to do that is, actually, rather compelling evidence of the assertion that they were not persuaded that they could obtain a conviction. Mr. Madilla's unlawful detention, without charge or trial, therefore, was nothing more than an unwarranted and illegal attempt to obtain by adminiatrative proceedings what they apparently felt they could not obtain in a court of law.

The president is fully empowered to declare people found on foreign battlefields to be enemy combatants, and to hold them at his pleasure, or until the end of hotilities. That is, I think, black letter law, and even if it wasn't, Hamdi certainly settled it.

But to hold a a US citizen indefinitely without trial, in circumstances where he was captured in the United States by civilian authorities, with the court system open and functioning, is a perversion of the constitution, and a dangerous overreach of presidential power. The government already had Mr. Padilla in custody on a material witness warrant. There was no reason at all to vacate the warrant in order to transfer him to military custody, in lieu of trying him.
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Previous Comments to this Post 

"But to hold a a US citizen indefinitely without trial, in circumstances where he was captured in the United States by civilian authorities, with the court system opening and functioning, is a perversion of tyhe constitution, and a dangerous overreach of presidential power."

Absolutely right!!
Written By: pilsener
URL: http://
Written By: Sharp as a Marble
Well said. I just find it a shame that it takes the courts to compel this Admin to do the obvious. This isn’t a stretch -- the court obviously tried to exercise as much deference to the executive as possible in this case. But this wasn’t a "hard facts make bad law" situation.

The next big issue to be addressed is the little matter of what constitutes the "duration of hostilities." I’m not being snarky -- it’s a profound dilemma. "Indefinite" simply isn’t good enough, but there is an ongoing need for keeping people who have demonstrated a commitment to kill Americans and America’s friends from being allowed to go do whatever they please.

I’m not saying it’s easy, but there are certain boundaries beyond which we have clearly strayed. "Preventive detention" for the duration -- when it doesn’t involve any judicial determination of past action or present threat, or when prisoners detained indefinitely cannot challenge the "evidence" or "theory" that stuck them in detention in the first place, or when proceedings are conducted by grossly unqualified military personnel clearly under the influence of the chain of command -- all these features of our current "system", whether Gitmo or stateside, whether citizens or non-citizens -- simply can’t be reconciled with anything approximating the rule of law.

These problems were excusable for the first months or even a year or two after Sept 11. But it’s long past time for the BushAdmin to recognize the big picture problem instead of continuing to argue nice little legal distinctions. That’s for courtrooms, not for policy, which needs to be based on principles clearly articulated.

The UK is starting to address this, again thanks to the courts. There are no simple answers, as the government’s "climb-down" today in response to opposition from across the political spectrum (Commons and Lords) is demonstrating.

But that, it seems to me, is the job of leaders. Ultimately, it’s their responsibility to deal with the hard stuff, not just push things off to the court system to bring under some sort of modest control. We should expect of our leaders to try to get out in front of these issues rather than hiding behind "executive authority" and "war-footing" to finesse these issues for expediency’s sake.

The positions taken by the Ashcroft DoJ seem to be "losers" in virtually every court case. This is part of what gets me so exercised -- it’s bad and short-sighted policy and bad and short-sighted lawyering. It’s not that I’m not sensitive to the possibility that certain individuals who don’t deserve detention or punishment will nonetheless ssuffer. But far more important, to my way of thinking, is the damage being done to the system, which produces one awkward precedent after another as the courts try to deal with the narrow facts presented while giving as much deference to the executive branch as possible. The end product is a whole set of very-difficult-to-interpret or impossible-to-apply-in-practice case law. And anyone, whether in law enforcement (or for that matter in business or civil practice) will tell you, that sort of body of case law will actually undermine the government’s ability in the future to go after bad guys aggressively in appropriate situations.

The tail is wagging the dog. Rather than undermine their positions in these court cases, they’ve refused to talk seriously about these issues. They need a good, thorough rethink of their policies. And then a reasonably open debate. And adjust their positions on individual cases accordingly.

It would be nice to think that with a new AG, the time is ripe to get our priorities straight. A solid, healthy democratic system should be putting these issues forward as appropriate and respectable topics for vigorous debate, not burying them in the bowels of court proceedings.

Written By: nadezhda
This isn’t a stretch -- the court obviously tried to exercise as much deference to the executive as possible in this case. But this wasn’t a "hard facts make bad law" situation.
No, it wasn’t. And no amount of deference due to a wartime president can make it so.
Written By: Dale Franks
I agree with the decision - just wish it had been made a long time ago.
Written By: Chaz Nugent
URL: http://
So if the exact same circumstances were to arise but the airport was
outside the US, Padilla could be held until the cessation of hostilities?

Would it matter what intelligence would be revealed as evidence in the
court proceedings?
Written By: no one you know
URL: http://
To do the obvious? The Bush administration doesn’t arrest people and send them to military court based on a mere inkling. CIA, FBI, NSA, and the cabinet work to protect this country, and what they know led to his arrest and imprisonment. No, we should not hold him indefinately. That is exactly what the Bush administration says as well. However, military court and civil court don’t operate in the same way, nor should they. Why should the US government give up vital information and secret sources so early in the war on terrorism. The first years he was detained, no one cared...but now that election is over and the feeling of importance people had about the horrors of terrorism are mostly forgotten. I won’t forget, and I disagree with the ruling. I believe that time is key in this war, and the sources that the Bush admin. have should be protected and kept secret until need be, even if this means a man sitting in prison for a longer time.
Written By: Chase
URL: http://

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