Supreme Court to Decide Padilla Case

The Supreme Court said Friday that it would decide whether an American citizen arrested in the United States may be held indefinitely, without access to lawyers or courts, as an “enemy combatant.” The justices decided to take up the case of Jose Padilla, who has been in custody 21 months but not formally charged with a crime.

The case goes to the heart of questions central to the government’s conduct of the war on terrorism within the United States -- whether the threat of terrorism allows the Justice Department to circumvent constitutional protections of defendants, much as the military would on a battlefield.

A federal appeals court ruled in December that President Bush did not have the constitutional authority as commander in chief to arrest American citizens on U.S. soil and hold them without filing criminal charges. The court said in a 2-1 decision that the president’s wartime powers did not extend to law enforcement within the United States itself, unless Congress authorized the chief executive to act.

Investigators suspect that Padilla, a New York-born Muslim convert, conspired with Al Qaeda operatives in a plot to detonate a radioactive explosive device, or “dirty bomb,” in the United States. He was arrested at Chicago’s O’Hare International Airport on May 8, 2002, after a trip to Pakistan.

The decision by the U.S. 2nd Circuit Court of Appeals in New York gave the government 30 days to release Padilla from the brig at the Navy base in Charleston, S.C. It did not order the government to set him free, but said the government needed to charge Padilla with a crime if it wanted to continue to hold him. Pending action by the Supreme Court, the government has continued to hold him in the brig.

Donna R. Newman, one of Padilla’s lawyers, expressed confidence that the Supreme Court would uphold the New York court’s decision. “The Supreme Court time and time again has said the commander-in-chief powers do not extend to the domestic sphere,” she said. “We are confident that, as we prevailed in the 2nd circuit, here too we shall prevail.”

Padilla has not met with his lawyers since he was placed in military custody 32 days after his arrest. A separate court ruling this month granted the lawyers access to their client. But by allowing the government to record and videotape the meeting, the ruling did not grant Padilla the right to consult privately.

Atty. Gen. John Ashcroft, seeking to have the Supreme Court overturn the New York court’s ruling, said in a written statement that Bush’s authority “to designate individuals as enemy combatants is a vital part of the war on terrorism.”

He said that by taking up the case, the court was providing “an opportunity to reaffirm this critical authority.”

Ashcroft argued that Padilla was “closely associated” with Al Qaeda, the organization the government says conducted the Sept. 11 attacks, and that “he was engaged in conduct that constituted hostile and war-like acts.” He said Padilla “possesses intelligence that would aid U.S. efforts to prevent attacks by Al Qaeda.”

The court is expected to hear the case in late April and to issue its decision by the end of its term in early summer.

The court already had agreed to hear a related case in the spring. That case involves Yaser Esam Hamdi, a Saudi national who was fighting for the Taliban regime in Afghanistan.

Hamdi surrendered to U.S. troops in fall 2001 and was taken to the U.S. Naval Base at Guantanamo Bay, Cuba. Military authorities learned he was born in Louisiana and therefore a U.S. citizen. He was sent to a Navy brig in Norfolk, Va., in April 2002 and has been held there without being charged or being permitted to speak to a lawyer or his family.

Taken together, the Padilla and Hamdi cases test the assertion by Bush administration lawyers that neither the Constitution nor the Geneva Conventions, which govern the treatment of prisoners of war, apply to what the government calls “unlawful enemy combatants.”

Under this argument, such “combatants” could be held indefinitely, with no right to contest whatever charges are brought against them.

Amnesty International says that the government’s conduct in both cases has constituted an abuse of power.

“The executive branch has created an environment in which anyone can be labeled an ‘enemy combatant,’ arrested, held in secret and denied access to a lawyer and his family,” William F. Schulz, executive director of Amnesty International USA, said Friday.