'Enemy Combatant' Appeal Tests Separation of Powers

November 14, 2003
New York Law Journal, November 14, 2003 by Mark Hamblett
Court to consider limits of president's authority and judicial review.
 
The emotional debate over the president's authority to designate an American citizen an enemy combatant and strip him of due process protections moves Monday to the 2nd U.S. Circuit Court of Appeals.
 
A three-judge panel will hear the government's appeal in the case of Jose Padilla, who has languished in a naval brig since President George W. Bush designated him a combatant in the war on terror, saying the former street gang member and convicted murderer had hooked up with al-Qaida and was pursuing a bombing plot on U.S. soil.
 
The government, led by Deputy Solicitor General Paul D. Clement, is appealing Southern District Chief Judge Michael B. Mukasey's ruling that defense lawyers must be allowed to meet with Padilla in South Carolina, where he has been held incommunicado since June 2002.
 
Clement and Assistant U.S. Attorneys Gary Stein and Eric Bruce argue that any meetings between defense lawyers and Padilla would jeopardize the government's interrogation of Padilla and its ongoing efforts to prevent more terror attacks and capture al-Qaida members.
Mukasey had rejected this argument, saying effective consideration of Padilla's petition for a writ of habeas corpus requires, at a minimum, that attorney Donna Newman and her co-counsel be allowed to meet with Padilla.
 
The judge's decision presented the 2nd Circuit with two questions: whether the president has the authority to order Padilla's detention "under the Constitution and the laws of war," and "whether judicial review of the factual basis" for that designation "can extend beyond confirming the existence of some evidence supporting that determination."
 
At a news conference Thursday, Newman and co-counsel Andrew Patel said the case was a critical test of the judiciary's ability to check the improper exercise of executive power.
Disputing the government's claim of wartime authority to justify the arrest of a man without probable cause or meaningful judicial review, Newman called the detention of Padilla a "unilateral attack on the Bill of Rights" that has left her client "in a black hole."
 
Newman and Patel enter Monday's arguments with a broad coalition of support for Padilla.
They point to Stanford Law School professor Jenny S. Martinez, an expert in international human rights, who will argue on behalf of friends of the court that include retired 3rd Circuit Chief Judge John J. Gibbons and former Southern District Judge Harold R. Tyler Jr., both Republican appointees, as well as former government officials and top lawyers.
 
The Martinez brief says they are arguing for Padilla because "the Executive's position in this case threatens the basic 'rule of law' on which our country is founded, the role of the federal judiciary and the separation of powers in our national government and fundamental individual liberties enshrined in our Constitution."
 
Newman and her allies also said Thursday that they approach Monday's arguments heartened by the U.S. Supreme Court's vote last week to consider the question of whether the U.S. courts lack jurisdiction to consider the legality of the detentions at the Guantanamo Bay Naval Base in Cuba.
 
Jonathan M. Freiman of the New Haven, Conn.-based Lawyers Committee for Human Rights said the Supreme Court's decision even to hear the case, which involves foreigners seized abroad during hostilities, bodes well for Padilla, a U.S. citizen arrested on American soil.
 
The facts of Padilla's case, however, are quite different from those in the Guantanamo case, where Solicitor General Theodore B. Olson has argued for the Bush administration that there is no right of judicial review for detainees there.
 
GOVERNMENT'S CASE
In the Padilla case, by contrast, the government concedes it is obligated to present "some evidence" in court supporting the president's decision to label a U.S. citizen an enemy combatant.
 
But the government team has an admittedly restrictive view of "some evidence" and the level of inquiry that the standard implies.
 
In their briefs, Clement and co-counsel argue that the president's authority to designate an enemy combatant is almost absolute, and that judges reviewing the designation should defer to the judgment and expertise of the executive branch.
 
Judge Mukasey, they argue, rightly rejected the "petitioner's invitation to engage in a searching judicial review of the factual basis for the President's determination."
 
The government argues that an "exhaustive" inquiry into the particulars of Padilla's contact with the enemy and the reliability of foreign intelligence sources that supported the president's designation would involve the kind of judgments that "are constitutionally committed to the Executive," and "lie outside the institutional expertise of the judiciary."
 
Mukasey had pleased Padilla's team by allowing them access to their client, but he left them disappointed when he explicitly rejected the notion that access was not based on the right to counsel.
 
While Newman and her co-counsel continue to press their right-to-counsel argument at the 2nd Circuit, Clement argues that Mukasey went too far and should have deferred to the claim of the Executive Branch that allowing any access to Padilla might jeopardize his interrogation.
 
Another issue is the Detention Act, 18 U.S.C. § 4001(a), which states that no "citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."
 
In their briefs, the Padilla lawyers and supporting amici say the congressional authorization in support of the anti-terror campaign passed after Sept. 11, 2001, was not an explicit rejection of the Detention Act or a "silent authorization for the indefinite detention without charge of an American citizen seized outside the zone of active hostilities."
 
But the government counters that Judge Mukasey was correct when he ruled that the detention was pursuant to an act of Congress.
 
Mukasey, the government said, found that "Congress's joint resolution broadly supports the application of military force to prevent future acts of terrorism by al Qaeda," and that Padilla was alleged in the president's designating letter to be a member of the terror group who had met with top operatives for Osama bin Laden.
 
Judges Rosemary Pooler, Barrington D. Parker and Richard C. Wesley will hear Monday's arguments in the ceremonial courtroom on the ninth floor of the Daniel Patrick Moynihan U.S. Courthouse.