Bob Locke
Member
War on Terrorism's Legal Tack Is Rejected
By Charles Lane
Washington Post Staff Writer
Friday, December 19, 2003; Page A22
In ordering the Bush administration to charge al Qaeda suspect Jose Padilla, declare him a material witness or set him free within 30 days, a New York federal appeals court has directly challenged the administration's legal approach to the war on terrorism -- and intensified the clash between the executive and judicial branches, which will ultimately have to be settled at the Supreme Court, legal analysts said yesterday.
The administration's assertion of authority to declare a U.S. citizen within the United States an enemy combatant, and to hold him or her indefinitely and incommunicado, has always been the most controversial of its legal claims, attracting criticism from across the ideological spectrum.
And the 2 to 1 decision by a panel of the U.S. Court of Appeals for the 2nd Circuit attacked that claim at its roots.
In an opinion that encapsulated the misgivings about the administration's assertions of executive power that many judges and lawyers have expressed almost since the war began, Judges Rosemary S. Pooler and Barrington D. Parker rejected President Bush's view that the Constitution gives him the authority as commander in chief to decide on his own who is an enemy of the United States in wartime -- or even to decide where the battlefield begins and ends.
"Presidential authority does not exist in a vacuum," Pooler and Parker wrote.
Rather, the court ruled, Bush needs express authorization from Congress to fight the war at home by detaining U.S. citizens on U.S. soil. The Sept. 18, 2001, joint resolution authorizing the president to use force against all "persons" linked to al Qaeda is not sufficient -- especially given that a federal law passed in 1971 bans the detention of citizens without express congressional authorization.
The court noted that the 1971 law had been passed in part to make amends for the mass detention of Japanese Americans during World War II.
Yesterday's ruling was the first time any court of appeals had rebuked the president so directly and so broadly on these issues. And Padilla, as the only U.S. citizen arrested on U.S. soil and declared an enemy combatant, presents a clearly defined test case of a policy whose wider application will probably depend on what the courts say.
Even the dissenting judge on the 2nd Circuit court, Richard C. Wesley -- while agreeing that the president does have the authority to detain Padilla as an enemy combatant -- rejected the administration's claim that he should have no right to counsel.
As a result, legal analysts said, the 2nd Circuit ruling was a more significant event than the ruling yesterday by the San Francisco-based U.S. Court of Appeals for the 9th Circuit, which said that al Qaeda and Taliban detainees being held by U.S. authorities in Guantanamo Bay, Cuba, have a right to sue for their freedom in federal court. The Supreme Court has already agreed to rule on that question next year, so its opinion will quickly overtake the 9th Circuit's.
"The 2nd Circuit has struck a body blow to the whole theory of fighting the war on terrorism, which was to move it out of the criminal justice system and treat it as a war," said John C. Yoo, a former Justice Department official who helped design the administration's approach. "The 2nd Circuit essentially said, no, this is like crime. And if that sticks, a lot of other pieces that underlie what the government does in the war on terror are going to collapse, too."
That is precisely what civil libertarians are hoping for.
"War with terrorists is a metaphor that takes you too far," said Susan Herman, general counsel of the American Civil Liberties Union, which supported Padilla in the 2nd Circuit. "Presidential powers during war are usually limited because it's war with another country, Congress has declared war . . . and the war has a time limit. At some point, it's clear when you release detainees and repatriate them."
The 2nd Circuit opinions demonstrated how much the constitutional issues in Padilla's case hinge on difficult, subjective questions of place and time. A key question is: If the United States is at war, where is the battlefield?
Bush -- pointing to the obvious fact that the World Trade Center and the Pentagon are on U.S. soil, and that the attacks on them were carried out by terrorists acting from within the United States -- argues, in effect, that American soil is a war zone.
The 2nd Circuit majority rejected that, saying Padilla, who was unarmed when he was picked up by the FBI in Chicago, had been detained "outside a zone of combat."
Pooler, an appointee of President Bill Clinton, and Parker, who was nominated by Clinton and appointed by Bush, after his nomination stalled in the waning days of the Clinton administration, treated the Sept. 18 joint declaration by Congress as essentially an authorization for Bush to use force abroad against terrorism -- noting that the declaration lacked any specific mention of detaining people in the United States.
But Wesley, appointed by Bush, countered in his dissent that "t seems clear to me that Congress understood in the light of the 9-11 attacks the United States had become a zone of combat."
He added that "congressional authorization is not necessary for the Executive to exercise his constitutional authority to prosecute armed conflicts when, as on September 11, 2001, the United States is attacked."
Congress could not have intended to authorize the president to send soldiers to shoot al Qaeda suspects around the world while denying him the right to detain them in the United States, Wesley wrote.
By Charles Lane
Washington Post Staff Writer
Friday, December 19, 2003; Page A22
In ordering the Bush administration to charge al Qaeda suspect Jose Padilla, declare him a material witness or set him free within 30 days, a New York federal appeals court has directly challenged the administration's legal approach to the war on terrorism -- and intensified the clash between the executive and judicial branches, which will ultimately have to be settled at the Supreme Court, legal analysts said yesterday.
The administration's assertion of authority to declare a U.S. citizen within the United States an enemy combatant, and to hold him or her indefinitely and incommunicado, has always been the most controversial of its legal claims, attracting criticism from across the ideological spectrum.
And the 2 to 1 decision by a panel of the U.S. Court of Appeals for the 2nd Circuit attacked that claim at its roots.
In an opinion that encapsulated the misgivings about the administration's assertions of executive power that many judges and lawyers have expressed almost since the war began, Judges Rosemary S. Pooler and Barrington D. Parker rejected President Bush's view that the Constitution gives him the authority as commander in chief to decide on his own who is an enemy of the United States in wartime -- or even to decide where the battlefield begins and ends.
"Presidential authority does not exist in a vacuum," Pooler and Parker wrote.
Rather, the court ruled, Bush needs express authorization from Congress to fight the war at home by detaining U.S. citizens on U.S. soil. The Sept. 18, 2001, joint resolution authorizing the president to use force against all "persons" linked to al Qaeda is not sufficient -- especially given that a federal law passed in 1971 bans the detention of citizens without express congressional authorization.
The court noted that the 1971 law had been passed in part to make amends for the mass detention of Japanese Americans during World War II.
Yesterday's ruling was the first time any court of appeals had rebuked the president so directly and so broadly on these issues. And Padilla, as the only U.S. citizen arrested on U.S. soil and declared an enemy combatant, presents a clearly defined test case of a policy whose wider application will probably depend on what the courts say.
Even the dissenting judge on the 2nd Circuit court, Richard C. Wesley -- while agreeing that the president does have the authority to detain Padilla as an enemy combatant -- rejected the administration's claim that he should have no right to counsel.
As a result, legal analysts said, the 2nd Circuit ruling was a more significant event than the ruling yesterday by the San Francisco-based U.S. Court of Appeals for the 9th Circuit, which said that al Qaeda and Taliban detainees being held by U.S. authorities in Guantanamo Bay, Cuba, have a right to sue for their freedom in federal court. The Supreme Court has already agreed to rule on that question next year, so its opinion will quickly overtake the 9th Circuit's.
"The 2nd Circuit has struck a body blow to the whole theory of fighting the war on terrorism, which was to move it out of the criminal justice system and treat it as a war," said John C. Yoo, a former Justice Department official who helped design the administration's approach. "The 2nd Circuit essentially said, no, this is like crime. And if that sticks, a lot of other pieces that underlie what the government does in the war on terror are going to collapse, too."
That is precisely what civil libertarians are hoping for.
"War with terrorists is a metaphor that takes you too far," said Susan Herman, general counsel of the American Civil Liberties Union, which supported Padilla in the 2nd Circuit. "Presidential powers during war are usually limited because it's war with another country, Congress has declared war . . . and the war has a time limit. At some point, it's clear when you release detainees and repatriate them."
The 2nd Circuit opinions demonstrated how much the constitutional issues in Padilla's case hinge on difficult, subjective questions of place and time. A key question is: If the United States is at war, where is the battlefield?
Bush -- pointing to the obvious fact that the World Trade Center and the Pentagon are on U.S. soil, and that the attacks on them were carried out by terrorists acting from within the United States -- argues, in effect, that American soil is a war zone.
The 2nd Circuit majority rejected that, saying Padilla, who was unarmed when he was picked up by the FBI in Chicago, had been detained "outside a zone of combat."
Pooler, an appointee of President Bill Clinton, and Parker, who was nominated by Clinton and appointed by Bush, after his nomination stalled in the waning days of the Clinton administration, treated the Sept. 18 joint declaration by Congress as essentially an authorization for Bush to use force abroad against terrorism -- noting that the declaration lacked any specific mention of detaining people in the United States.
But Wesley, appointed by Bush, countered in his dissent that "t seems clear to me that Congress understood in the light of the 9-11 attacks the United States had become a zone of combat."
He added that "congressional authorization is not necessary for the Executive to exercise his constitutional authority to prosecute armed conflicts when, as on September 11, 2001, the United States is attacked."
Congress could not have intended to authorize the president to send soldiers to shoot al Qaeda suspects around the world while denying him the right to detain them in the United States, Wesley wrote.
