Rulings Dent Detentions of Terror Suspects

Dealing a double blow to the Bush administration, federal appeals courts said Thursday that the government had acted illegally in holding a U.S.-born “enemy combatant” in a military brig and in denying hundreds of foreigners at the U.S. Navy base at Guantanamo Bay, Cuba, the right to challenge their detention.

A federal appeals court in New York ruled that the president did not have the authority as commander in chief to arrest American citizens on U.S. soil and to hold them without filing criminal charges.

The president’s wartime powers do not extend to the home front, the appeals courts said, unless Congress authorizes the chief executive to act. And neither the Constitution nor federal law gives the president an “inherent power” to make arrests, said the three-judge panel from the U.S. 2nd Circuit Court of Appeals.

The 2-1 decision gave the government 30 days to release from a military brig Jose Padilla, a Brooklyn-born Muslim who allegedly conspired with Al Qaeda operatives to detonate a radioactive explosive device in the United States.

The judges did not say that Padilla must go free. Instead, they said the government needs to charge him with a crime if it wants to hold him.

In a separate 2-1 decision in San Francisco, the U.S. 9th Circuit Court of Appeals said the government needed to give Guantanamo detainees a chance to speak with lawyers and seek their release through the courts. About 660 suspected terrorists and war criminals are being held at the base.

The Bush administration contends that the captives are being held on foreign soil. The judges of the 9th Circuit ruled that the U.S. had power over the base even though the government leased it from Cuba, and thus, the captives were entitled to access the U.S. legal system.

A Justice Department spokesman said lawyers were studying the decision. Mark Corallo, the spokesman, reiterated the position that the agency had asserted in several Guantanamo-related cases in the last two years -- that U.S. courts have no authority to consider a case involving a noncitizen held by the U.S. military abroad.

Thursday’s ruling in the Padilla case is broad in its sweep and narrow in its effect. While it puts a clear limit on the president’s powers, its holding applies only to Padilla. The 33-year-old Muslim convert is the only native-born “enemy combatant” arrested in the United States. The New York court said it was not contesting the president’s authority to hold an enemy combatant who was picked up on a foreign battlefield.

The White House quickly denounced the ruling and said it would appeal.

“We believe the 2nd Circuit ruling is troubling and flawed,” said White House Press Secretary Scott McClellan. “This is a case in which an individual was involved with terrorist organization activity and was actively engaged in an effort to do harm to the American people. The president has repeatedly said that his most solemn obligation and responsibility is to protect the American people, and the ... ruling is really inconsistent with the clear authority of the president.”

Administration lawyers will ask the court to put its ruling in the Padilla case on hold. They can then ask the full appeals court to reconsider the matter. Failing that, they can appeal to the U.S. Supreme Court.

Last month, the high court agreed to hear an appeal filed on behalf of the Guantanamo detainees. Most were picked up in Afghanistan or Pakistan, and U.S. authorities said they were working with terrorists or the Taliban. Lawyers working on their behalf said they deserved at least a hearing to try to show they were innocent.

Although the plight of the Guantanamo detainees has drawn wide attention in Europe, the case of Padilla has been most closely watched by civil libertarians here. They say the Bush administration’s claim that the president could order the secret detention of a U.S. citizen in a military brig was unprecedented in recent American history.

The only parallel example, they say, was the mass internment of Japanese Americans on the West Coast shortly after the surprise attack on Pearl Harbor in 1941. President Franklin D. Roosevelt ordered the internment as a military and security measure shortly after Congress declared war on Japan.

That order has since been condemned as a tragic injustice. In 1971, to prevent a recurrence, Congress passed the Non-Detention Act. It says: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” The appeals court said that law “prohibits all detentions of citizens ... by the president during war and other times of national crisis.”

Civil libertarians hailed Thursday’s ruling as reaffirming a basic principle of American law. “This decision is a victory for the Constitution,” said Deborah N. Pearlstein of the Lawyers Committee for Human Rights, which organized a coalition of groups that supported Padilla’s claim. “After the internment of Japanese American citizens during World War II, we learned our lesson as a nation.”

Padilla was arrested at Chicago’s O’Hare Airport on May 8, 2002, after a flight from Pakistan. FBI agents who were aboard the flight then took him to New York, where he was held as a possible witness in the investigation of the 2001 terrorist attacks on the World Trade Center.

He was assigned a lawyer, Donna R. Newman, who met with him, and she prepared a motion to seek his release. On June 9, however, Padilla was taken into military custody and sent to a military brig in Charleston, S.C.

The government said the president had designated Padilla an enemy combatant and turned him over to the authority of Defense Secretary Donald H. Rumsfeld. In a dramatic announcement, Atty. Gen. John Ashcroft, speaking from Moscow, said the government had interrupted a plot to detonate a radioactive “dirty bomb” in the United States.

Administration lawyers argued that because Al Qaeda had brought the war on terrorism to the U.S., the president had the authority to arrest enemy agents who operated here, even if they were American citizens.

Since Ashcroft’s announcement, Newman and Padilla’s relatives have been barred from speaking with him. No charges have been filed.

Newman filed a writ of habeas corpus, contending that her client was being held illegally. In response, the government said that she had no standing to speak for him, and that the courts in New York no longer had jurisdiction to rule on the matter. A federal judge agreed that the government could hold Padilla, but ruled that the lawyer had a right to speak with her client and to prepare a challenge to his detention.

Both sides appealed. Last month, the case came before a three-judge panel of the 2nd Circuit -- Judges Rosemary S. Pooler, a Clinton appointee; Richard C. Wesley, a new Bush appointee; and Barrington D. Parker Jr., who was first named as trial judge by President Clinton and elevated to the appeals court by President Bush.

On Thursday, the court’s opinion by Pooler and Parker said the administration acted illegally by holding Padilla in military custody.

“The President does not have the power under ... the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat,” they wrote in the case of Padilla vs. Rumsfeld.

They relied largely on a Supreme Court ruling in 1953 that rejected President Truman’s seizure of the nation’s steel mills during the Korean War.

Truman had contended that as commander in chief he needed to keep the steel mills in operation, despite a strike threat. But Justice Robert H. Jackson, in a key opinion, said the president’s war powers did not extend to the home front, unless Congress granted the chief executive special authority.

And from giving the president that extra authority, the 1971 law makes clear that the president cannot order military arrests and detentions at home, said Pooler and Parker.

In a partial dissent, Wesley said he would have upheld the president’s authority to detain Padilla. At the same time, however, he said he would have allowed Newman to visit her client and to prepare a challenge to his detention in a federal trial court.

“This is a powerful and courageous decision,” said Steven Shapiro, legal director for the American Civil Liberties Union. “It makes clear that the war on terrorism does not suspend the rule of law.” One option would be for Congress to pass a law that authorizes such detentions. Rep. Adam B. Schiff (D-Burbank) has introduced a bill to allow the arrest of designated enemy combatants. It would give these detainees a right to contest the allegations against them.

So far, Congress has taken no action on this proposal.

Despite his victory, Padilla is unlikely to go free any time soon. An appeal to the Supreme Court could take several months. And if the administration loses, it could then file criminal charges against Padilla and hold him pending a trial.

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Times staff writer Henry Weinstein in Los Angeles contributed to this report.