Judge Rules Padilla Must be Charged or Released

Judge Says Terror Suspect Can’t Be Held as an Enemy Combatant (NYT rss)

A federal district judge in South Carolina ruled Monday that President Bush had greatly overstepped his authority by detaining an American citizen as an enemy combatant for nearly three years without filing criminal charges. The judge, Henry F. Floyd, ruled that the government must release the American, Jose Padilla, within 45 days from the military brig in Charleston, S.C., where he has been held since June 2002. That left the Bush administration time to appeal, and a Justice Department spokesman, John Nowacki, said officials immediately decided to do so.

In his opinion, Judge Floyd sharply criticized the administration’s use of the enemy combatant designation in Mr. Padilla’s case. “The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant,” Judge Floyd wrote. The judge said he had no choice but to reject the president’s claim that he had the power to detain Mr. Padilla, who was arrested in May 2002 at O’Hare International Airport in Chicago and was later accused of having planned to detonate a radiation-spewing “dirty bomb” in the United States as part of a plot by Al Qaeda. “To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition,” Judge Floyd wrote, “but it would also be a betrayal of this nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.”

And here comes the ironic part:

Judge Floyd, who was nominated to the court by President Bush in May 2003, said that to agree with the president would “be to engage in judicial activism,” a phrase often used by the White House to criticize rulings with which it disagrees.

Of course, his hands were tied:

Although Judge Floyd’s opinion was notable for its sweeping language, its substance was not a surprise because it reflected a Supreme Court ruling last June in a related case involving Yaser Esam Hamdi. Mr. Hamdi, a Saudi who was an American citizen by virtue of his birth in the United States, was arrested on the battlefield in Afghanistan and held as an enemy combatant in the same brig in Charleston. The justices ruled that Mr. Hamdi was entitled to have his case heard in court, saying “a state of war is not a blank check for the president.” But they declined to rule on the Padilla case at the same time, saying his lawyers had wrongly filed their claims in New York instead of South Carolina, where Mr. Padilla was being held.

Why the Supremes punted this one, allowing Padilla to be kept in custody unconstitutionally for months, still escapes me.

Jeff Quinton provides a link to Floyd’s opinion.

Michelle Malkin has an excellent roundup of the history of this case, noting that, in the aftermath of the 9/11 attacks, Congress authorized the president to

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The problem is that, to the extent an act of Congress contravenes the Constitution, it is null and void. Depriving a U.S. citizen of liberty without trial is rather specifically enjoined by the Bill of Rights:

Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Were Padilla in the U.S. military, he could be tried in a military tribunal. Ditto were he a non-citizen or caught overseas. (I heartily endorsed summary trial in Afghanistan for John Walker Lindh and would not have batted an eye were he executed on the spot.) Unfortunately, none of those conditions apply.

Malkin correctly points out the risks associated with trying Padilla in the court system rather than a military tribunal:

Much of the evidence against Padilla–his own statements, the statements of other captured al Qaeda operatives, information provided by intelligence agents–either would not be admissable in a civilian court or could not be presented without compromising intelligence assets. A military tribunal, by contrast, could admit such evidence and would not be obligated to share it with Padilla or his lawyer.

Does Denyse Williams think there is no down side to waging the War on Terror in civilian courts? Look at the trial of Omar Abdul Rahman, the sheik who plotted the 1993 bombing of the World Trade Center. He used his lawyer, Lynne Stewart, to pass messages to terrorists abroad. Then there is the so-called “20th hijacker” Zacarias Moussaoui, an al Qaeda operative who has asserted the right to see classified documents and the right to interrogate captured al Qaeda combatants being detained abroad.

Finally, there is the issue of witness intimidation. Our police can’t even protect people who testify against domestic gangsters. What hope would they have of protecting someone who testifies against an al Qaeda operative?

All true. The consequence of recognizing Padilla’s rights is likely that he will go free, since the government would be unwilling to risk revealing its intelligence sources and methods in a public trial. We let murderers go all the time in the name of more minor transgressions of their rights than this, though. And, presumably, the FBI and other appropriate agencies can monitor his activities, including obtaining warrants to wiretap his phone to minimize the risks of his being on the loose.

Even when the nation is at war, which we most assuredly are, the Constitution applies. Giving any president, including one for whom I twice voted, the power to declare a citizen an “enemy combatant” and hold him indefinitely is unfathomable.

Update (1441): Malkin replies that the Supreme Court’s opinion, in Ex Parte Quirin (1942) differs from mine. I would note that the Supreme Court is, not infrequently, wrong.

I’m not sure they were in the Quirin case, though. The facts of the case differ markedly from Padilla’s. There, the only citizen involved, Haupt, was a soldier of an enemy state against whom Congress had previously declared war, who had violated the Articles of War, conditions not met here. And, as noted in the NYT excerpt, Hamdi vs. Rumsfeld (2004) seemed to very specifically limit the power to declare a citizen an enemy combatant to those carrying arms on foreign soil.

Judge Floyd [PDF] also addresses this point:

1) In Quirin, Mr. Quirin was charged with a crime and tried by a military tribunal. In the instant case, Petitioner has not been charged and has not been tried.
2) Quirin involves a prisoner whose detention was punitive whereas Petitioner̢۪s detention is purportedly preventative.
3) Quirin is concerned more with whether the petitioner was going to be tried by a military tribunal or a civilian court. The case at bar is concerned with whether Petitioner is going to be charged and tried at all.
4) The decision in Quirin preceded the Non-Detention Act.
5) Quirin involved a war that had a definite ending date. The present war on terrorism does not.

FILED UNDER: Afghanistan War, Law and the Courts, Terrorism, , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. SoloD says:

    If you change the Presidents name from George Bush (H.W. or W.) to Clinton (Bill or Hillary) there is no way that most conservatives would support the right of a President to unilaterally hold a US citizen at his (or her) whim. (I imagine that Ms. Malkin probably wasn’t as supportive of the power of the executive six years ago.)

    Judge Floyd ruled the only way that any reasoned thinker should. It is always difficult to balance dealing with a potential threat to the public against an intangible, such as the public’s civil rights, but once the scale starts tipping toward the threat, it is difficult, if not impossible to get back the civil rights. Tough decision, but not a tough choice.

  2. Ugh says:

    I don’t think al Qaeda would waste its time going after people who testify against their operatives. They clearly think they have bigger fish to fry.

  3. Kappiy says:

    Well, I am sure that this will not be a setback for the government. They certainly WOULD NEVER arrest someone and hold them captive without evidence they believed would hold up in a court of law.

    After Padilla’s [aka Al Muhajir] arrest, Ashcroft said: “Let me be clear: We know from multiple independent and corroborating sources that Abdullah Al Muhajir was closely associated with al Qaeda and that as an al Qaeda operative he was involved in planning future terrorist attacks on innocent American civilians in the United States.”

    If this is really the case, then he will certainly be punished for breaking the law. The question is why the government hasn’t gotten around to putting this guy on trial.

    Of course, in the case of Hamdi, who Ashcroft and Rummy consistently framed as a threat, he was let off scot-free.

  4. Stygius says:

    Malkin’s citation of Ex Parte Quirin misses the point. The Quirin case dealt with express delegation of congressional authority; not a resolution authorizing offensive operations. Americans can be tried in military courts, but it is Congress that determines their jurisdiction, not the president.

    If Bush wanted indefinite detention authority, he would be better off getting Congress to pass a bill giving him authority to do so in specific cases. Congress would have to rest on its authority to suspend habeas corpuse (Article I.9) and its Article I.8 authority to determine the laws of war.

    The White House has relied on inherent authority arguments (from the Bybee Memo, for instance). This is not only constitutionally inexcusable, their unwillingness to get authority from Congress has been a massive tactical failure in the War on Terrorism.

  5. charlie32 says:

    Wasn’t it Lincoln who suspended habeas corpus, causing Justice Taney to retire?
    And Abe went on to win the Civil War.
    I think the general sense was that the Constitution is not a suicide pact.
    That said, a secure, classified trial is not unheard of, just hard to do.

  6. Stygius says:


    Lincoln suspended habeas corpus in certain areas in Maryland (namely, marching routes into Washington, DC). He was uncomfortable with this (limited) act, however, and asked Congress to pass legislation giving him express authority to do so.

    And then–like you say–went on to win the Civil War.

    And you are right, the Constitution is not a suicide pact, which is why it doesn’t give the president the authority to either ignore law or make it up.

    Also, it is not a suicide pact in the sense that it expressly gives Congress the authority to define violations of the “laws of war” and suspend habeas corpus in times of war and insurrection. And Congress has had more than sufficient time to pass such legislation since 2001. Thus, appeals to “inherent” presidential authority and “imminent threats” contravene the Constitution.

    That both the president and the Congress have been negligent in dealing with this problem cannot be blamed on the Constitution.

  7. Carlos says:

    Pardon me, but I must have missed something somewhere along the line.

    It has been established (except in a court of law) that Padilla was a member of some part of al Qaida. It has been established that the enemy we fight in this war doesn’t use traditional military uniforms, they just go about their business of killing whomever they please in as large numbers as they can, uniforms be damned.

    Now, I realize Mr. Padilla wasn’t wearing a uniform, and I know he didn’t have his little dirty bomb on his person when arrested. But I can’t for the life of me figure out what the problem is keeping this sandbat out of circulation in the Western Hemisphere. After people are dead (up to tens of thousands in his case) it will be too late to say he shouldn’t be doing that. By the way I’m reading these things, in the nanosecond between the time he pulls the trigger on his dirty bomb and the time everything within miles is nuclear waste, the government is supposed to step in and arrest him and prevent it from happening?

    What’s wrong with this picture? He wasn’t planning a convenience store holdup at 3 am!

  8. James Joyner says:

    Carlos: While we’re in a state of war, there has been no congressional declaration of war. Second, it really doesn’t matter how big the potential crime. Presidents don’t, for example, have the power to lock suspected mafia dons up indefinitely without trial.

  9. Stygius says:


    If you read the opinion, you’ll see that Padilla was originally arrested on a court-ordered warrant, which was later vacated by that court after he was handed over to the military. The point is that civilian courts and agencies were perfectly capable of keeping Padilla out of circulation (since they’re the ones who took him out of circulation), thus the military detention wasn’t “necessary” under the president’s authority. If no authority, then unconstitutional.

    If Congress wants to suspend habeas corpus for Americans who are members of al-Qaeda or affiliated groups as a preventive measure, by all means. But that is the Congress’ discretion, not the president’s.


    As for “no declaration of war.” Congress passed the “Authorization for the Use of Military Force” in the wake of the September 11 attacks, which is the same thing. Thus, the idea that this is all solely about “criminal” matters is wrong. It is also a military matter, but in a manner bound by the Constitution.

  10. Stygius says:

    I think I may have misunderstood your post. Sorry.

  11. Jeff says:

    Lincoln suspended Habeas Corpus whenever it suited him to make arrests, not just in the state of Maryland. The Maryland legislature was locked up in Ft. McHenry (something one of Francis Scott Key’s nephews who was a legislator found ironic) to prevent them from voting to secede.