An appeals court has placed limits on the government's authority to detain U.S. citizens as enemy combatants. Score one for the Constitution.
Published December 22, 2003
Incarcerating American citizens as "enemy combatants" has been the most troubling reach of the Bush administration's war on terrorism. According to the Justice Department, the president, as commander in chief, has the authority to seize Americans suspected of terrorist activities and hold them incommunicado and indefinitely without charge - a startlingly broad arrogation of power by the executive branch. So far, only two Americans have been designated enemy combatants, Yaser Esam Hamdi and Jose Padilla, but in principle at least, there is nothing stopping the president from detaining many more. That is why a ruling by a federal appellate court in Manhattan on Thursday, placing limits on this authority, is welcome.
In a 2-to-1 decision, the 2nd U.S. Circuit Court of Appeals stood firmly in the corner of our constitutional traditions of separation of powers. It ruled that the president could not detain Padilla, the so-called "dirty bomber", without first obtaining congressional authorization. "The president's inherent constitutional powers do not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat," wrote the majority.
Padilla was picked up at Chicago's O'Hare International Airport in May 2002 and originally held as a material witness. When his attorney tried to secure his release, the government changed his designation to that of enemy combatant. Since then Padilla has been held in a military brig in Charleston, S.C., and denied any contact with his lawyers or family. The government refuses to charge him and says it can hold him this way until the war on terrorism ends. Padilla is alleged to have been part of an al-Qaida plot to release a radiation bomb in the United States.
In ruling that Padilla would have to be released from military custody within 30 days and either set free or charged in a civilian court, the court was careful to say it understood the national security threat posed by al-Qaida - noting how it sits only a short distance from the World Trade Center site. Nonetheless, said the court, the rulebook, our Constitution, is not suddenly expendable when threats arise.
The ruling correctly focused on a law passed by Congress in 1971 that explicitly prohibits the detention of any citizen "except pursuant to an Act of Congress." The legislative history of the law indicates it was passed to prevent summary detentions during wartime or other times of crisis. The intent was to provide a legislative bulwark against shameful episodes of national hysteria such as the internment of the Japanese during World War II. It clearly defines as illegal the president's seizure of Padilla without due process.
Meanwhile, the Justice Department's own inspector general, Glenn Fine, concluded that many of the immigrants detained in the sweep following 9/11 were physically abused by prison guards. Fine reported that hundreds of prison videotapes - tapes the department said earlier did not exist - showed that prisoners held at a detention facility in Brooklyn were slammed against walls and repeatedly strip-searched.
It appears that the administration's disregard for civil liberties is finally running into resistance, not only in the courts but in John Ashcroft's own Justice Department. Even a federal commission on terrorism, headed a former Republican governor of Virginia, has recently called for the creation of a bipartisan civil liberties oversight panel to review congressional and Bush administration actions in the war on terrorism.
Ultimately, the U.S. Supreme Court will have a final say on many of the administration's excesses. We hope the conservative-leaning high court will recognize that ignoring the principles of due process during times of crisis makes us no safer and less free.