S.D.N.Y., Index No. 02 Civ. 4445 (MBM), U.S. Court. of Appeals, 2nd Cir., No. 03-1027 (amicus)
This case concerns the unlawful detention of a U.S. citizen without charges or trial and issues as to whether such detention by military officials violates due process of law, violates the doctrine mandating the supremacy of civilian authority over the military and violates a congressional enactment prohibiting the detention of U.S. citizens unless authorized by Congress.
Jose Padilla is an American citizen. He was initially arrested on a material witness warrant when he landed at O’Hare International Airport on May 8, 2002. Attorney General Ashcroft subsequently announced that Padilla was an agent of al Qaeda who was involved in a plot to explode a "dirty" nuclear bomb in the United States. Padilla has never been formally charged with that crime. Instead, approximately one month after his arrest, he was designated as an "enemy combatant" by the U.S. government. He was then transferred from civilian authority to the military where he has been detained in a military brig in South Carolina and held in communicado without access to counsel. The government contends that it can jail Padilla in a military brig indefinitely and that Padilla can be held without charges or trial in any forum, civilian or military, until the terrorist threat from al Qaeda has ended. A habeas corpus petition was filed to challenge the legality of his detention.
In an amicus brief filed in the Southern District of New York, the ACLU and NYCLU argued that, when the government accuses an individual of serious wrongdoing and seeks to hold that individual indefinitely on the basis of the accusation, fundamental principles of due process require that the government present formal charges and prove its case. Only if it proves its case may it impose a sanction and, even then, it may only impose those sanctions prescribed by the legislature. Accordingly, the amicus brief argued that the government’s assertion that it can detain Padilla indefinitely without any process at all is unconstitutional.
In a decision rendered on Dec. 4, 2002, the District Court held that Padilla’s detention is not per se unlawful, but that the issue as to whether the detention is lawful will turn on whether the President has "some evidence to support his finding that Padilla was an enemy combatant." The Court also held that it would resolve the habeas petition based upon that legal standard and that Padilla may consult with counsel to aid in the habeas corpus petition challenging the detention. The government appealed to the Second Circuit, which held, on Dec. 18, 2003, that the President lacked inherent authority to order Padilla’s military detention. The Court, therefore, ordered Padilla’s release from military custody, but allowed the government to transfer him to civilian authorities to be held for criminal prosecution or, if appropriate, as a material witness.
On Feb. 20, 2004, the U.S. Supreme Court granted the government’s petition for writ of certiorari. On April 12, 2004, the NYCLU, in conjunction with the ACLU and Trial Lawyers for Public Justice, submitted an amicus brief in support of the Second Circuit’s opinion. In addition to basic due process concerns, the brief argues that the transfer of Padilla from civilian to military authorities and his detention in a military brig violates principles respecting the supremacy of civilian authority over the military recognized by the Civil War era case of Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
Because of its work on the Padilla case, the NYCLU also assisted the ACLU in the development of an amicus brief in Hamdi v. Rumsfeld, a case that also involved the military detention of a U.S. citizen without charges or trial. Yasser Hamdi was captured in Afghanistan while he was allegedly fighting with the Taliban. It was subsequently discovered that he is an American citizen and he was transferred to a military brig in Virginia. The government held him in the brig, in communicado, for six months and insisted that it could do so indefinitely because, like Padilla, Hamdi is an "enemy combatant." In an amicus brief filed with the Fourth Circuit, the ACLU argued that the term "enemy combatant" embraces both "lawful combatants" (POWs) and "unlawful combatants"; that if the government wants to treat Hamdi as a POW it must comply with the international conventions governing POW status, which it is not doing in this case; and that if the government wants to treat Hamdi as an "unlawful combatant," it must formally accuse him of unlawful conduct and prove its case.
In a decision rendered on Jan. 8, 2003, the Fourth Circuit reversed the District Court’s decision and held that Hamdi’s habeas corpus petition should be dismissed upon the ground that the judiciary should not intrude into the warmaking authority of the President.
The Supreme Court agreed to review the Fourth Circuit decision in Hamdi, and on June 28, 2004, the Supreme Court vacated the judgment and remanded the Hamdi case. In Hamdi, the Court conceded that Congress had allowed the President "all necessary and proper force" to fight terrorism, but maintained that due process requires that any citizen who is classified as an "enemy combatant" must be given a meaningful opportunity to contest the factual basis for that detention in front of a neutral decisionmaker.
In the Padilla case, the Supreme Court concluded that the habeas petitions had been improperly filed in the Southern District of New York, since Mr. Padilla was being held in South Carolina. Accordingly, the Court transferred the case to the South Carolina District Court. On February 28, 2005, the South Carolina District Court concluded that Padilla was also entitled to a hearing before a neutral tribunal to determine whether he was an "unlawful combatant," or he was entitled to be released if no hearing was to be held.
On May 6, 2005, the government filed its appeal to the United States Court of Appeals, Fourth Circuit. On Sept. 9, 2005, the Fourth Circuit reversed the District Court’s ruling and held that President Bush had the power to hold Padilla as an enemy combatant. The plaintiff appealed to the U.S. Supreme Court.
On Nov. 17, 2005, the government, in order to prevent the case from going to the U.S. Supreme Court, finally indicted Padilla on terrorism and conspiracy charges. The government requested that Padilla be transported from a military to civilian facility. Since the Fourth Circuit held that the Supreme Court should decide the issue of Padilla’s transfer, the Supreme Court granted the government’s request on January 4, 2006. On April 3, 2006, the Supreme Court declined to hear Padilla’s appeal.
Attorneys involved in this case include Steven Shapiro, Sharon McGowan, Lucas Guttentag, Robin Goldfaden (ACLU); Arthur Bryant, Rebecca Epstein, Richard Frankel (Trial Lawyers for Public Justice); Arthur Eisenberg, Chris Dunn, Donna Lieberman (NYCLU).