Attorney Scores Upset Victory in Major Terror Case

March 2, 2005
Jonathan Freiman of Wiggin and Dana’s national appellate practice group has scored a stunning upset victory this week in a case of nationwide significance.  He represents Jose Padilla, an American citizen held in detention by the U.S. military for almost three years in a military brig, without being charged with a crime. The case asks whether the President has the unilateral power to detain indefinitely, without charge, an American citizen seized in a civilian setting in the United States. The decision,  which came seven weeks after Freiman’s oral argument in South Carolina, was issued by Judge Henry Floyd, a recent appointee of President Bush.  
Judge Floyd ruled that the President must release Padilla within forty-five days or charge him with a crime.  Continuing to detain Padilla without charge "would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this Nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties."
Judge Floyd rejected the government's invitation to expand its powers over American citizens. "For the Court to find for Respondent would also be to engage in judicial activism," he wrote.  "This Court sits to interpret the law as it is and not as the Court might wish it to be. Pursuant to its interpretation, the Court finds that the President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant."
Padilla, unarmed, was initially apprehended on U.S. soil after deplaning from a flight that had landed at O'Hare Airport in Chicago  on suspicion of having conspired with a terrorist organization to commit terrorist acts in the U.S. Nearly three years later, he has yet to be charged with any wrongdoing  -despite years of solitary confinement and interrogation. A petition for a writ of habeas filed in the S.D.N.Y., initially  granted by the federal appeals court in New York, was dismissed by the U.S. Supreme Court last June on a technicality, and the case was re-filed in South Carolina.