Oorspronkelijk geplaatst door David Stout
Courts Deal Blow to Bush on Treatment of Terror Suspects
Published: December 18, 2003
ASHINGTON, Dec. 18 — Bush administration tactics in the campaign against terrorism suffered a pair of setbacks today in two federal appeals courts thousands of miles apart.
An appellate court in San Francisco ruled that prisoners held at the Guantánamo Bay naval base in Cuba should have access to lawyers and the American court system.
Hours earlier, an appellate court in Manhattan ruled that President Bush does not have the power to detain as an enemy combatant a United States citizen who was seized on American soil and to deny him a lawyer.
Both decisions, by three-judge panels from the Court of Appeals for the Ninth Circuit, in San Francisco, and from the Court of Appeals for the Second Circuit, in Manhattan, were by 2-to-1 margins.
The Justice Department said today that it would seek a stay of the Manhattan ruling as government lawyers consider whether to appeal to the full Second Circuit or try to go directly to the Supreme Court. The White House spokesman, Scott McClellan, called the ruling "troubling and flawed" and "really inconsistent with the clear constitutional authority of the president and his responsibility."
There was no immediate administration reaction to the San Francisco ruling, but an appeal to the full Ninth Circuit or to the Supreme Court is very likely.
Taken together, at least for the moment, the decisions amounted to a day of stinging judicial defeats for the administration, which has also experienced several recent embarrassing episodes in its approach to fighting terrorism. The decisions also constituted the latest chapters in a constitutional drama that has been playing out since the terror attacks of Sept. 11, 2001.
The Second Circuit panel rejected the administration's treatment of Jose Padilla, who is accused of plotting to set off a radioactive "dirty bomb."
The Ninth Circuit rejected the administration's arguments that because the 660 men being held at Guantánamo were picked up overseas on suspicion of terrorism and being held on foreign soil, they might be held indefinitely, without charges or trial.
"We share the desire of all Americans to ensure that the executive enjoys the necessary power and flexibility to prevent future terrorist attacks," Judge Stephen Reinhardt wrote for the Ninth Circuit majority, ruling on a suit brought by a California relative of a Libyan being held in Cuba.
"However," Judge Reinhardt said, "even in times of national emergency — indeed, particularly in such times — it is the obligation of the judicial branch to ensure the preservation of our constitutional values and to prevent the executive branch from running roughshod over the rights of citizens and aliens alike." He was joined in his ruling by Judge Milton I. Shadur.
At one point, the majority decision amounted to a rebuke. "In our view," the decision said, "the government's position is inconsistent with fundamental tenets of American jurisprudence and raises most serious questions under international law."
But the dissenting Ninth Circuit judge, Susan P. Graber, argued that a 1950 Supreme Court decision makes it clear that an enemy alien detained overseas by the American military does not have standing in American civilian courts.
In the Second Circuit case, the issue was somewhat different, since it deals with an American citizen held on American soil.
Mr. Padilla, a convert to Islam, was arrested last year at O'Hare International Airport near Chicago on his return from Pakistan after extensive travel in the Middle East. Attorney General John Ashcroft drew worldwide attention soon after when he said the government believed that Mr. Padilla, who has a long criminal record as a gang member in Chicago, had been planning to explode a bomb that would use conventional explosives to disperse radioactive particles over a wide area.
Subsequently designated an "enemy combatant" by the government, Mr. Padilla was briefly held in Manhattan before being sent to a Navy brig in Charleston, S.C., where he has been denied access to a lawyer and held incommunicado ever since — treatment that the Second Circuit panel said today was wrong despite the fact that the government had ample reason to charge Mr. Padilla.
"As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat Al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," Judges Barrington D. Parker Jr. and Rosemary S. Pooler declared today.
"But presidential authority does not exist in a vacuum," two jurists wrote, "and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress."
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Alluding to the constitutional import of the Padilla case, the majority wrote: "Where, as here, the president's power as commander in chief of the armed forces and the domestic rule of law intersect, we conclude that clear Congressional authorization is required for detentions of American citizens on American soil."
Today's ruling does not mean that Mr. Padilla will go free, even if the ruling is sustained on appeal. The two judges said, rather, that Defense Secretary Donald H. Rumsfeld should release Mr. Padilla from military custody within 30 days, after which he could be prosecuted in civilian courts or held as a material witness.
"Under any scenario, Padilla will be entitled to the constitutional protections extended to other citizens," the appellate court majority wrote today, a clear reference to access to counsel.
In dissent, Judge Richard C. Wesley wrote, "In my view, the president as commander in chief has the inherent authority to thwart acts of belligerency at home or abroad that would do harm to United States citizens."
At another point, Judge Wesley said the majority had failed to cite constitutional precedent for the notion that Congress is given "exclusive constitutional authority to determine how our military forces will deal with the acts of a belligerent on American soil.
"There is no well-traveled road delineating the respective constitutional powers and limitations in this regard," Judge Wesley wrote.
The administration has encountered several embarrassing episodes related to the campaign against terrorism. A federal judge in Virginia recently ruled that the government could not seek the death penalty against Zacarias Moussaoui, the only person charged in connection with the Sept. 11 attacks. That ruling is being appealed.
The administration has also been criticized at home and abroad for its handling of detainees at the Guantánamo naval nase in Cuba. And most recently, the government's case against Capt. James J. Yee, a former Muslim chaplain at Guantánamo, has seemed unsteady, as prosecutors have had trouble sustaining charges that he may have been guilty of security violations.
Mr. Padilla is the only American who has been taken into custody on American soil and declared an "enemy combatant." While the Second Circuit majority said it had no conclusion on his guilt or innocence, it pointedly noted that "the government had ample cause to suspect Padilla of involvement in a terrorist plot."
The dissenter, Judge Wesley, contended that the Congressional resolution passed shortly after Sept. 11, 2001, gave President Bush all the authority he needed to hold Mr. Padilla as an enemy combatant, his American citizenship notwithstanding. The judge rejected any suggestion that the resolution was a broadside attack on basic constitutional rights.
"The president is not free to detain U.S. citizens who are merely sympathetic to Al Qaeda," Judge Wesley said. "Nor is he broadly empowered to detain citizens based on their ethnic heritage. Rather, the joint resolution is a specific and direct mandate from Congress to stop Al Qaeda from killing or harming Americans here or abroad."
The words of the majorities and dissenters in the two cases made it abundantly clear that the issues do not concern just the separate, sometimes conflicting powers of the president and Congress, but something perhaps even more fundamental — the delicate balance between personal freedoms and the security of the nation, especially in wartime.
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