Saturday, September 10, 2005


By William Fisher

Media coverage of Hurricane Katrina all but drowned out what may well be one of the most consequential court decisions in American history – and one that should focus even more attention on the ideological composition of the Supreme Court.

Last week, A three-judge federal appeals court panel ruled unanimously that President Bush has the authority to detain as an enemy combatant an American citizen who fought United States forces on foreign soil.

The panel threw out a ruling by a trial judge in South Carolina that Mr. Bush had overstepped his bounds by detaining Jose Padilla, a Chicago native, for three years.

In an opinion written by Judge J. Michael Luttig, who has been considered by President Bush for a nomination to the Supreme Court, the panel said Mr. Bush had the right to detain Mr. Padilla as an enemy combatant under the powers granted the president by Congress after the Sept. 11 terrorist attacks in New York and at the Pentagon.

"The exceedingly important question before us is whether the president
of the United States possesses the authority to detain militarily a citizen
of this country who is closely associated with Al Qaeda, an entity with which the United States is at war," Judge Luttig wrote. "We conclude that the
president does possess such authority," citing the Congressional authorization.

Consider the implications for ordinary U.S. citizens. If the president says you’re an enemy combatant, you can be held indefinitely – which is when the ‘war on terror’ will end. You will have no evidentiary hearing to determine probable cause for holding you. You will have no right to habeas corpus, a legal tradition going back hundreds of years. You will have no access to any court to defend yourself. You will not be permitted to confront your accusers. You will not be given access to the government’s evidence.

These are all sacred constitutional principles – and unless the Supreme Court overturns this decision, they might as well not exist.

Mr. Padilla’s guilt or innocence has not been determined by anyone. What we know is that the military’s story of his alleged offenses has changed radically since he was arrested on May 8, 2002.

Originally, the government claimed that Padilla intended to set off a "dirty bomb" that would spew radiation in some American city. But now the government has all but eliminated that accusation, saying he may have been planning to use gas lines to destroy apartment buildings. But it has presented no evidence of that in any court.

Government lawyers now argue that the main new reason he should be detained as an enemy combatant was that he fought American forces in Afghanistan alongside Qaeda colleagues. But that charge is also unproven by any evidence.

In an earlier case involving an American citizen, Yaser Esam Hamdi, the Supreme Court ruled that an American citizen could be detained by President Bush as an enemy combatant because he was purportedly captured while fighting in Afghanistan. But, even under that circumstance, the court added to the ambiguity by ruling that Hamdi was entitled under the Constitution to contest the allegations made against him by "a neutral decision maker."

Justice Sandra Day O'Connor, who wrote the controlling opinion, said it might be a military tribunal with rules of evidence more favorable to the prosecution than in civil courts. Mr. Hamdi was sent back to his home country, Saudi Arabia, before that issue was resolved.

But Jose Padilla was not arrested on a battlefield in Afghanistan. He was arrested at O'Hare International Airport. He has not been charged with any criminal offense as of this date.

Last week’s Appeals Court ruling did not directly address the issue of what kind of hearing Mr. Padilla is entitled to, but that is almost certain to be the subject
of another round of litigation. Jonathan M. Freiman, a New Haven lawyer who represents Mr. Padilla, has said he will appeal.

If his client is consigned to the sham of military tribunals, he will lose most of rights American citizens are entitled to.

Mr. Padilla’s lawyer has said the only fair hearing for Mr. Padilla would be a trial in an American civilian court. But that is likely to produce an invocation of the ‘state secrets’ privilege, which the government has increasingly been used to avoid trials that might prove embarrassing.

If that defense were to prevail, the Padilla case could not be litigated because presentation of the prosecution’s evidence would compromise ‘national security’.

Attorney General Alberto R. Gonzales, another oft-mentioned Supreme Court nominee, said he was pleased that the appeals court "has reaffirmed the president's critical authority to detain enemy combatants who take up arms on behalf of Al Qaeda and travel to the United States to kill innocent Americans. "

The Padilla case is on its way to the Supreme Court. How nominee John Roberts – or Alberto Gonzales or Michael Luttig, for that matter -- would vote is unclear.

But if the Senate Judiciary Committee does not demand to know Mr. Roberts’s views on the reach of presidential power, it will have failed a critical test.