By Joanne Mariner
FindLaw Columnist
Special to CNN.com
12/30/03
(FindLaw) --Sometimes a single word is remarkably telling. In the federal appeals court ruling that denied the Bush administration the power to unilaterally detain U.S. citizen Jose Padilla indefinitely as an enemy combatant, that word is "captured."
Soldiers on the battlefield are captured. Criminals in the United States are arrested.
Yaser Hamdi, an American citizen being held in indefinite detention in a Navy brig as an enemy combatant, was taken into custody in a zone of active combat in Afghanistan. Every court that has discussed his case has used military terminology in referring to his "capture," not his arrest.
But Padilla's tale is different. A suspected terrorist who has been detained by the military for the past 18 months without charge, access to counsel, or any judicial forum in which to challenge the allegations against him, Padilla was taken into custody in Chicago. He had just gotten off a civilian airliner, was wearing civilian clothing, and was unarmed.
A fundamental question with regard to both Hamdi and Padilla is whether they should be treated as soldiers or criminals. John Walker Lindh, captured in nearly identical circumstances to Hamdi's, was treated as a criminal. He's now serving a long sentence in federal prison in California. So too was Richard Reid, the so-called shoe bomber, prosecuted and convicted in Boston federal court.
Despite these courtroom successes, the Bush administration has insisted on treating Hamdi and Padilla as soldiers. Labeling them "enemy combatants," the administration asserts that they may be held without any legal process whatsoever until the "war on terror" is over. This war, the administration claims, is a global one, so that an enemy combatant captured in Chicago is no different than one captured in Afghanistan or Iraq.
In an opinion issued on December 18, the U.S. Court of Appeals for the 2nd Circuit disagreed. Chicago is not like Afghanistan, the court averred, and Padilla is not like Hamdi. Having been arrested on American soil, not captured on a non-U.S. territory battlefield, Padilla cannot be detained indefinitely by the President as an enemy combatant. (Full story)
Arrest outside of 'A zone of active combat'
To best understand the Padilla decision, one should think back to the final
appellate court ruling in the Hamdi case. In its January 2003 opinion, the U.S.
Court of Appeals for the 4th Circuit needed only a single fact to uphold Hamdi's
indefinite, incommunicado detention: the fact that he was captured in Afghanistan,
"a zone of active combat in foreign theater of conflict."
The 4th Circuit's ruling was frighteningly broad. But what the government was asking the 2nd Circuit to do in the Padilla case was still more dramatic: to sanction the indefinite detention of an American citizen who was not captured on a foreign battlefield, but rather picked up in Chicago. The government was arguing, in short, that the one fact that the Hamdi court relied upon was one fact too many.
Such an argument calls into question the rule of law. Under the government's reasoning, any American could be detained anywhere in the United States for any length of time, and the courts would have no business asking why. Although the district court that heard Padilla's habeas corpus request ruled that the government should have to provide "some evidence" in support of its position that Padilla was an enemy combatant, the government disagreed. In its view, no fact, no evidence, and no legal process should be required.
'An undeclared war exists between al Qaeda and the United States'
The 2nd Circuit ruled against the government on broader grounds than did the
district court, and thus did not discuss the government's burden of proof. Yet
its opinion was in many ways a narrow one, which in no way challenged the government's
key underlying claims. It did not, for example, question the Bush Administration's
assertion that the "war on terror" is a literal war, unlike, for instance,
the Cold War or the War on Drugs.
"[W]hether a state of armed conflict exists against an enemy to which the laws of war apply is a political question," the court declared. It is "for the President, not the courts" to decide. While acknowledging that an assumption basic to the government's case was that "an undeclared war exists between al Qaeda and the United States," the court specifically refused to address the issue.
More surprisingly, the court also failed to expressly address the individual rights questions at issue in the case. Rather than ruling that the indefinite, incommunicado detention of an American citizen seized on American soil outside a combat zone violates the rights of the detainee, the court held only that the President lacks inherent power to order such detentions. Basing its ruling on the separation of powers, the court specifically noted that "while Congress -- otherwise acting consistently with the Constitution -- may have the power to authorize the detention of United States citizens under the circumstances of Padilla's case, the President, acting alone, does not."
The court took pains in its opinion to distinguish the Hamdi case (and thus, implicitly, the situation of detainees held on Guantanamo). Far from challenging the president's power to capture and detain enemy soldiers on the battlefield, the court, in a footnote, went so far as to imply that any congressional effort to restrict that power would be unconstitutional.
At the heart of the court's ruling, therefore, is the fact that Chicago is not Afghanistan. Unlike Hamdi, Padilla was not captured in a combat zone, but picked up on U.S. soil. He was "arrested," as the court says at one point in its ruling; "seized," as it says at another; "taken into custody," as it says elsewhere. (Indeed, a technical error in the Word version of the opinion reveals that the court, in a telling substitution, replaced the word "captured" with the words "taken into custody" in a footnote referring to Padilla's arrest.)
Hamdi is an enemy combatant, while Padilla is not
Because the Padilla case represents the Bush administration's most unprecedented
and extreme instance of overreaching in fighting terrorism, the 2nd Circuit's
ruling is welcome and important. Its reasoning suggests, moreover, that even
while the courts may profess to accept the government's position that the "war
on terror" is a war like any other, they will not accede to the more radical
implications of that claim.
Certainly, the 2nd Circuit's approach makes few concessions to the unconventional aspects of the current "war." Terrorists wear civilian clothes and they don't fight on battlefields. With box cutters instead of AK-47s, and gym memberships instead of military skills, the men who brought down the World Trade Center had few of the attributes of normal soldiers. From this perspective, Padilla may indeed be a more serious threat than Hamdi, who is probably not a terrorist at all.
The president, the courts and Congress will, at some point, recognize that terrorists pose threats equivalent to those posed by military enemies, but that the counter-terrorism effort is distinctly different from a war. In the meantime, the 2nd Circuit's approach will at least protect our basic liberties.
Joanne Mariner, a FindLaw columnist. is a human rights attorney practicing
in New York.
Find this article at:
http://www.cnn.com/2003/LAW/12/22/findlaw.analysis.mariner.padilla/index.html