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NYLS Law Review Vols. 22-63 (1976-2019)

Volume 48 Issue 1 Criminal Defense in the Age of Article 4 Terrorism

January 2004

The Jose Padilla Story

Donna R. Newman New York Law School

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Recommended Citation Donna R. Newman, The Jose Padilla Story, 48 N.Y.L. SCH. L. REV. (2003-2004).

This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. 18178_nlr_48-1-2 Sheet No. 23 Side A 04/27/2004 12:08:32 have com- * EWMAN 1 39 * * * R. N ONNA New York Law School Law Review New York Law School D 2 THE JOSE PADILLA STORY THE JOSE Yamashita, 327 U.S. 1, 40-41 (1946) (Murphy, J., dissenting). Padilla v. Rumsfeld, No. 02 Civ. 4445 (S.D.N.Y. 2002); Padilla v. Rumsfeld, Padilla v. Rumsfeld, No. 02 Civ. 4445 (S.D.N.Y. “At a time like this, when emotions are understandably “At a time like this, when emotions attitude toward high, it is difficult to adopt a dispassionate a case of this nature. the time when Yet now is precisely peoples in other that attitude is most essential. While due process and the lands may not share our beliefs as to free to give effect to dignity of the individual, we are not the rights of others. our emotions in reckless disregard of is the embodiment We live under the Constitution, which of the new world. of all the high hopes and aspirations peace.And it is applicable in both war and We must act accordingly.” In re See The editors of the The editors of the * R. Newman is a criminal defense attorney who represents Jose Padilla. Donna 2. 1. M K No. 03-2235 (L), 03-2438 (2d Cir. 2003), available at http://news.findlaw.com/legal news/us/terrorism/cases/index.html. piled the following article primarily from briefs submitted to the article primarily from briefs piled the following of New York Court for the Southern District United States District in connection with Appeals for the Second Circuit and the Court of detention of Jose Padilla.the federal government’s The controver- and new argu- this case are still not resolved sies connected with is briefed and to be developed as the case ments continue Supreme Court. presented to the J.D. New York Law School, 1986; M.S. Brooklyn College, 1971; B.S. Long Island Univer- J.D. New York Law School, 1986; M.S. Brooklyn sity, 1968. briefs Andrew G. Patel is Ms. Newman’s co-counsel and co-author of the upon which this article is based. J.D. New York Law School, 1981; B.A. Antioch College, 1974. The author would like to thank Professor Donald H. Zeigler and Professor Bepko, Cara Centanni, and Monica Tanina Rostain as well as Lori Adams, Arminda Lima for their assistance in editing this article. \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 1 16-APR-04 9:14 C Y 18178_nlr_48-1-2 Sheet No. 23 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 23 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 23 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 3 NTRODUCTION I NEW YORK LAW SCHOOL LAW REVIEW The government’s actions are shocking, unprecedented and actions are shocking, unprecedented The government’s Mr. Padilla in his federal Andrew G. Patel and I represent Jose Padilla, a United States citizen traveling on a valid United citizen traveling a United States Jose Padilla, 3. On March 3, 2004, Mr. Patel and I were permitted to see Mr. Padilla. The conditions of the meeting were extremely restrictive. We were restricted in the topics we could discuss. and videotaped. The meeting was monitored Accordingly, we did not engage in any confidential discussions.The materials we sent to him were reviewed by the Department of Defense and redactions were made. unconstitutional. that military In short, the government claims soil and stow him away in a forces may seize a citizen on American wants, without charges and with- brig for as long as the government whenever the Commander-in-Chief out access to counsel or a court, of its dubious reliability) concludes on “some evidence” (regardless with an enemy. that the citizen has “associated” habeas corpus proceeding. factual ac- We present here a detailed and edited portions of our briefs count of Mr. Padilla’s experience Court of Appeals for the Second submitted to the United States Circuit.and detention of We argue that: (1) the military seizure power as Commander-in- Mr. Padilla is beyond the President’s Chief; (2) executive law- the President has engaged in unlawful is specifically prohibited by a making; (3) Mr. Padilla’s detention federal statute, 18 U.S.C. § 4001(a); and (4) the recently enacted response to the September 11, Joint Resolution by Congress in the seizure and detention of some- 2001, attacks, does not authorize one like Jose Padilla. 40 wit- on a material by federal authorities was arrested States passport, O’Hare Airport. at Chicago’s ness warrant two On June 9, 2002, George W. Bush court hearing, President days before a scheduled to be an “enemy order declaring Mr. Padilla executed a military to seize him directing the Secretary of Defense combatant” and he was being de- Correctional Center where from the Metropolitan witness warrant.tained on a material Since that time, Mr. Padilla Charleston, South the Consolidated Naval Brig in has been held in Carolina.communication with the outside He has been allowed no with counsel. world, not even \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 2 16-APR-04 9:14 18178_nlr_48-1-2 Sheet No. 23 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 23 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 24 Side A 04/27/2004 12:08:32 41 ASE C S ’ ADILLA P OSE J application to vacate the material witness ACTS OF THE JOSE PADILLA STORY JOSE PADILLA THE F HE ex parte I. T Mr. Padilla’s story is the sort associated with totalitarian states, totalitarian sort associated with story is the Mr. Padilla’s New United States citizen, born in Brooklyn, Jose Padilla is a to New York City and, on Federal authorities took Mr. Padilla The conference never occurred. 9, 2002, On Sunday, June M K 2003] not democracies.criminally be charged should either Mr. Padilla or released. York. aboard a commercial 8, 2001, he traveled to Chicago On May and carrying a son, dressed in his own clothing airliner to visit his passport.valid United States not possess a weapon, a bomb, He did to bomb-mak- or an instruction manual relating nuclear material, in the airport. agents approached him ing. Law enforcement He questions and requested an attorney.politely answered He was ar- warrant issued by a to a grand jury material witness rested pursuant New York. in the Southern District of federal judge sitting The for the Southern District of New United States Attorney’s Office in support the affidavit of York sought the warrant and included (“FBI”) Special Agent Joseph En- Federal Bureau of Investigation nis. statement Its contents remain sealed, except for Agent Ennis’ become a martyr.” that Mr. Padilla was “unwilling to Metropolitan Correction Center May 14, 2002, detained him in the (“MCC”) on a high security floor. Mr. Padilla ap- The next day, B. Mukasey, of the Southern peared before Chief Judge Michael me to represent him.District of New York, who appointed Mr. Pa- irons, shackles, and handcuffs.dilla was brought to court in leg Mr. review the Ennis affidavit.Padilla and I were permitted to For the Padilla on a regular basis at MCC next several weeks, I met with Mr. court to find that a material and filed motions asking the district not be lawfully detained.witness for a grand jury could I antici- at a conference scheduled for June pated a decision on the motions 11, 2002. order declaring Jose Padilla an President Bush executed a military “enemy combatant” and ordered his detention by the military, even though he is a civilian. On the same day, Judge Mukasey granted the government’s \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 3 16-APR-04 9:14 warrant. The President’s order directed the Department of Justice to transfer Mr. Padilla to the custody of the Secretary of Defense. C Y 18178_nlr_48-1-2 Sheet No. 24 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 24 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 24 Side B 04/27/2004 12:08:32 M K C Y On 9 . [Vol. 48 8 habeas corpus Arrest in Terror Plot/Feds: , June 11, 2002, at A05. EWSDAY On June 12, 2002, Attor- N 6 , with Paul Wolfowitz, Deputy Secre- 4 CBS Early Show NEW YORK LAW SCHOOL LAW REVIEW The White House subsequently explained that its The White House subsequently 7 Tom Brune, Craig Gordon and Thomas Frank, Tom Brune, Craig Gordon and Thomas The next day, he stated, “I don’t think there was actually a stated, “I don’t think there was The next day, he 5 See On Tuesday, June 11, 2002, I filed a writ of On Tuesday, June 11, 2002, I filed I was not advised of Mr. Padilla’s seizure by the military until of Mr. Padilla’s seizure by the I was not advised 9. Writ of Habeas Corpus (June 11, 2002), Padilla v. Bush, 233 F. Supp. 2d 564 4. of Defense to detain Mr. Padilla as an En- President’s Order to the Secretary 5. Secretary of Defense Paul Wolfowitz, U.S. Depart- Press Conference, Deputy 6. Interview by Jane Clayson, 7. Donald Rumsfeld, U.S. Department of De- News Briefing, Defense Secretary 8. (S.D.N.Y. 2002) (No. 02-4445), available at http://news.findlaw.com/hdocs/docs/ter rorism/padillaus61102pet.pdf. was subsequently amended to name, as That petition respondents, George W. Bush, as ex officio Commander-in-Chief; Donald Rumsfeld, of Secretary of Defense; John Ashcroft, Attorney General; and Commander M.A. Marr, the Consolidated Naval Brig in Charleston, South Carolina. tary, U.S. Department of Defense (June 11, 2002) available at http://usinfo.state.gov/ tary, U.S. Department of Defense (June 11, topical/pol/terror/02061103.htm. fense (June 12, 2002), 2002 WL 22026773. in U.S., American, al Qaeda sought to set off ‘dirty bomb’ emy Combatant (June 9, 2002), available at http://news.findlaw.com/hdocs/docs/ter emy Combatant (June 9, 2002), available rorism/padillabush60902det.pdf. at http://www.defenselink.mil/transcripts/ ment of Justice (June 10, 2002), available 2002/t06102002_t0610dsd.html. 42 was an enemy combatant, Padilla was stated that Mr. The order him it did not describe Qaeda (although with al closely associated war-like in hostile and and was engaged of al Qaeda), as a member international terrorism. for acts of preparation acts, including It person- regarding possessed intelligence that Mr. Padilla also stated a continual of al Qaeda, and that he represented nel and activities to national security. and grave threat John Ashcroft an- before Attorney General June 10, 2002, shortly at a news confer- transfer to a military brig nounced Mr. Padilla’s ence. of Defense, Paul Wolfowitz, That same day, Deputy Secretary Padilla was being announced that Mr. also at a news conference, was plotting to he was a “terrorist who allegedly detained because in the United a radioactive ‘dirty bomb’ build and detonate States.” \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 4 16-APR-04 9:14 ney General Ashcroft stated that the government was not interested ney General Ashcroft stated that but rather was holding him for in charging Mr. Padilla with a crime interrogation. continued my appointment as June 12, 2002, the district court plot beyond some fairly loose talk . . . .” plot beyond some fairly loose talk taken by the military was one sudden decision to have Mr. Padilla for June 11, 2002. driven by the court hearing scheduled 18178_nlr_48-1-2 Sheet No. 24 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 24 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 25 Side A 04/27/2004 12:08:32 11 43 12 One of the sources admit- 13 THE JOSE PADILLA STORY JOSE PADILLA THE I attempted to contact Mr. Padilla but was advised I attempted to contact 10 text accompanying Part I. See supra In his affidavit, Mr. Mobbs concedes that he has no personal In his affidavit, Mr. Mobbs concedes On December 4, 2002 the district court ruled that the Presi- On December 4, 2002 the district 10. § 18 U.S.C. 11. 1385 (1984). Declaration of Michael H. Mobbs Special Advisor to the Under Secretary of 12. 13. Declaration of Michael H. Mobbs Special Advisor to the Under Secretary of M K by the Department of Defense that no communication would be of Defense that no communication by the Department by mail.permitted, even moved to dismiss the pe- The government on those is- grounds, and after full briefing tition on jurisdictional briefs on the court ordered the parties to submit sues, the district merits. the government submitted the In support of its position, in the Department H. Mobbs, a civilian attorney affidavit of Michael detention. recited the grounds for Mr. Padilla’s of Defense, which Defense for Policy (Aug. 27, 2002), available at http://news.findlaw.com/hdocs/docs/ padilla/padillabush82702mobbs.pdf. Defense for Policy (Aug. 27, 2002), available at http://news.findlaw.com/hdocs/docs/ padilla/padillabush82702mobbs.pdf. Mr. Mobbs’s affidavit suggests that the information upon which the suggests that the information Mr. Mobbs’s affidavit the same infor- in issuing his order was essentially President relied Witness Warrant.mation used to issue the Material The only differ- does not appear to have been ence being that the President to become a martyr.” informed that Mr. Padilla was “unwilling to justify Mr. Padilla’s deten- knowledge of any of the facts offered derived from two anonymous and tion and that his information was uncorroborated intelligence sources. 2003] as co-coun- Esq. to appear G. Patel, and appointed Andrew counsel sel. being held in violation Mr. Padilla is asserted that The petition rights, his confinement Sixth Amendment Fifth, and of his Fourth, the writ of privilege of suspension of the an unlawful constitutes the Posse military violates seizure by the and his habeas corpus, Comitatus Act. \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 5 16-APR-04 9:14 tedly was medicated when he provided the information and later tedly was medicated when he provided recanted his statements. history of inten- The other source has a to investigators in order to mis- tionally providing false information lead them. 2002, nor the Neither the President’s order of June 9, why Mr. Padilla, already detained Mobbs’ affidavit provides a reason be less of a threat or more willing by order of a civilian court, would detained by the military. to provide information if he was to direct the mili- dent had the authority as Commander-in-Chief C Y 18178_nlr_48-1-2 Sheet No. 25 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 25 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 25 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 Another 18 , 233 F. Supp. 2d 564 (S.D.N.Y. , 233 F. Supp. 2d 564 (S.D.N.Y. Bush Bush provided congressional au- congressional provided 15 The court also ruled that the Au- also ruled that The court 14 17 NEW YORK LAW SCHOOL LAW REVIEW The court noted that it would consider events sub- The court noted . at 76-77. The court noted that under 28 U.S.C. § a 2243 (2004), 16 Id Order Certifying Government’s Interlocutory Appeal (April 9, 2003), Pa- . at 89, 102. See Id The government refused to agree to any conditions permitting refused to agree to any conditions The government 17. 18. 15. of Sept. 18, 2001, Pub.L.No. 107-40, 115 Stat. 224. Act 16. Order and Opinion at 102 (Dec. 4, 2002), 14. and Opinion at 101 (Dec. 4, 2002), Order dilla v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2002) (No. 02 Civ. 4445), available at dilla v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2002) (No. 02 Civ. 4445), available http://news.findlaw.com/hdocs/docs/padilla/padillarums40903opn.pdf. petitioner has a right to present evidence in support of his petition as well as facts to petitioner has a right to present evidence district court ruled that to enable the court refute the government’s position. Thus, the and deciding the Padilla petition, pursu- to properly perform its function in reviewing Writs Act, 28 U.S.C. §ant to the authority provided under the All 1651(a) (2000), Pa- the limited purpose of presenting to the dilla was to have access to his attorneys for petition.court facts and evidence in support of his to He ordered the parties to meet defense counsel could meet with Padilla, attempt to agree on conditions under which at which time, the court would order the and set a court date of December 31, 2002, an agreement. conditions if the parties had not come to 2002) (No. 02-4445), available at http://www.nysd.uscourts.gov/rulings/02CV04445. pdf. 2002) (No. 02-4445), available at http://www.nysd.uscourts.gov/rulings/02CV04445. pdf. The court ruled that I had standing as “next friend” to pursue a writ of habeas of Defense Donald Rumsfeld was a proper corpus on Padilla’s behalf, that Secretary Court for the Southern District of New respondent and that the United States District to hear this case. Thus, the court denied York had jurisdiction over him and jurisdiction of jurisdiction or transfer to the District of the Government’s motion to dismiss for lack South Carolina. sequent to Mr. Padilla’s detention in determining whether the evi- detention in determining sequent to Mr. Padilla’s irrelevant. by the President had become dence relied upon Finally, to consult with Mr. Padilla should be allowed the court held that with pursuing a limited purpose of assisting him counsel for the writ of habeas corpus. access to counsel and opposed any attorney-client contact.access to counsel and opposed any On Jan- for reconsideration of the part uary 9, 2003, the government moved access to counsel. of the order that granted Mr. Padilla 44 even enemy combatant citizen as an an American tary to detain had been army and of any foreign he was not a member though in the United States. arrested \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 6 16-APR-04 9:14 thorization for Use of Military Force for Use of Military thorization thorization for the President’s action. for the President’s thorization in The court held, the President in the deference to be accorded to consideration of to minimal judicial Mr. Padilla was entitled only these matters, that to support whether there was “some evidence” review to determine his detention. 18178_nlr_48-1-2 Sheet No. 25 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 25 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 26 Side A 04/27/2004 12:08:32 , 45 Rumsfeld The court again empha- 23 24 THE JOSE PADILLA STORY JOSE PADILLA THE On the issue of access to counsel, the court rea- On the issue of 21 The court characterized Vice Admiral Jacoby’s The court characterized 20 . . , 243 F. Supp. 2d 42, Opinion and Order (Mar. 11, 2003), , 243 F. Supp. 2d 42, Opinion and Order The declaration spoke generally about the intelligence- generally about spoke The declaration On March 31, 2003, the government moved for an interlocutory appeal of On March 31, 2003, the government moved The court rejected the government’s argument that The court rejected the government’s at 53. at 52 at 54 19 22 Id Id. Id Id. Padilla On March 11, 2003, the district court granted the govern- 2003, the district court granted On March 11, 23. 24. 21. 22. 19. of Vice Admiral Lowell E. Jacoby, Director of the Defense Intelli- Declaration 20. M K the court’s ruling on Padilla’s right to meet with counsel, the court’s ruling on jurisdic- the court’s ruling on Padilla’s right to meet was a proper “next friend.” Padilla opposed tion, and the court’s determination that I alternative, sought certification on all other the motion for certification and, in the and March 31, 2003 Orders and Decisions. rulings contained in the December 4, 2002 six questions for interlocutory appeal. On April 9, 2003, the district court certified However, the district court specifically did not certify for appeal its ruling that Ms. New- man had standing as “next friend.” court found that this question did not meet The the requirements for an interlocutory appeal because “there was no reasonable grounds for disagreement under existing law on the propriety of her serving as ‘next friend.’” Application was made to the Second Circuit by the Government for permission to take an interlocutory appeal and expedited appeal. Padilla also sought leave to take an in- (No. 02-4445), available at http://news.findlaw.com/hdocs/docs/padilla/padillarums 31103opn.pdf. gence Agency (January 9, 2003). 2003] of briefing followed.full round for re- of their motion In support from Vice a declaration submitted the government consideration, the Defense Intelligence Director of Lowell E. Jacoby, Admiral Agency. \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 7 16-APR-04 9:14 statements about Mr. Padilla being a valuable source of intelligence Mr. Padilla being a valuable source statements about as “speculative.” the court need only examine under the “some evidence” standard the facial sufficiency of the evidence. gathering process, interrogation techniques, and the use of interro- and the use techniques, process, interrogation gathering on Terrorism.gation in the “War” It also opined that Mr. Padilla about al Qaeda re- intelligence information may have some general training, and planning. garding recruitment, affirmed its ear- reconsideration in part and then ment’s motion for lier decision. sized that it was unable to determine whether Mr. Padilla was being sized that it was unable to determine him an opportunity to respond “arbitrarily detained without giving to the government’s allegations.” soned that “[t]here is no dispute that Padilla has the right to bring is no dispute that Padilla has soned that “[t]here to vindicate “there is no practical way for Padilla this petition,” and the court] other than through a [the] right [to bring facts before lawyer.” C Y 18178_nlr_48-1-2 Sheet No. 26 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 26 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 26 Side B 04/27/2004 12:08:32 M K C Y 29 27 Ex see also [Vol. 48 30 Where ILITARY Juan R. Tor- 25 M 155, 172 (2002) HE see also T Indeed, Congress 28 OMMENTARY ADILLA Simply put, the Presi- Simply put, the . C P 26 ONST , 19 C ETENTION OF ONSTITUTIONALITY OF D C and Detain Padilla. . L. 648 (2002) [hereinafter Torruella]; David G. Adler, . L. 648 (2002) [hereinafter Torruella]; David ONST declaration of martial law. declaration of martial NEW YORK LAW SCHOOL LAW REVIEW EIZURE AND . J. C , 343 U.S. at 637-38 (Jackson, J., concurring); , 343 U.S. at 637-38 (Jackson, J., concurring); S A , Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579 (1952); , Duncan v. Kahanamoku, 327 U.S. 304 (1946). Not Empower Him to Order the Military to Seize Not Empower Him to Order the Military HALLENGE TO THE Clinton v. Jones, 520 U.S. 681 (1997); United States v. Nixon, 418 U.S. 683 Clinton v. Jones, 520 U.S. 681 (1997); United Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952); Youngstown Sheet & Tube Co. v. Sawyer, , 4 U. P bona fide See, e.g. See, e.g. Cf. See Youngstown Milligan, 71 U.S. 2, 114-16 (1866). On the Slippery Slopes of Afghanistan: Military Commissions and The Exercise of Presi- On the Slippery Slopes of Afghanistan: Military The President does not have the power to order the military to order the military the power to does not have The President The district court ruled that the President’s authority as Com- The district court ruled that the Milligan, 71 U.S. 2, 114-16 (1866); Duncan v. Kahanamoku, 327 U.S. 304 (1946); 28. 29. 18 U.S.C. § 4001(a) (2003) (prohibiting any citizen from being imprisoned or 30. 27. 25. 26. II. A C A. as Commander-in-Chief Does The Authority Granted to the President (1974). otherwise detained by the United States except pursuant to an Act of Congress). parte Toth v. Quarles, 350 U.S. 11 (1955); Reid v. Covert, 354 U.S. 1 (1957). (“[U]nder the banner of executive power a president may not lay claim to any of the (“[U]nder the banner of executive power to either Congress or the judiciary.”). powers, express or implied, that are allocated ruella, dential Power Ex parte The Steel Seizure and Inherent Presidential Power mander-in-Chief was broad enough to encompass the military arrest mander-in-Chief was broad enough terlocutory cross-appeal.parties On June 10, 2003, the Second Circuit granted the leave to take an interlocutory appeal. The authority for the President’s military seizure and detention of the President’s military seizure The authority for in any con- found in the text of the Constitution, Mr. Padilla is not in any judicial precedent.gressional act, or Moreover, the military the Constitution a civilian citizen is prohibited by imprisonment of absent a has repeatedly rejected similar at- Furthermore, the Supreme Court the rights claimed here. tempts by the Executive to exercise 46 Constitu- soil unless the on American detain a U.S. citizen seize and power. act of Congress grants him that tion or a specific \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 8 16-APR-04 9:14 has specifically prohibited civilian detention without charges. has specifically prohibited civilian Congress has legislated in a particular area but has not authorized in a particular area but Congress has legislated to proceed in a the President is without authority executive action, with that legislation. manner inconsistent dent, regardless of how well-intentioned, is not above the law. of how well-intentioned, is not dent, regardless 18178_nlr_48-1-2 Sheet No. 26 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 26 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 27 Side A 04/27/2004 12:08:32 47 32 It has em- Youngstown 33 , as in Mr. Pa- President Truman 38 The Framers crafted a Youngstown 35 In 37 , the Supreme Court explicitly described THE JOSE PADILLA STORY JOSE PADILLA THE 34 Nos. 69, 71(Alexander Hamilton), No. 48 (James Madison). , 354 U.S. 1, 40 (1957). , Marbury v. Madison, 5 U.S. (137 Cranch) (1803). Marbury v. Madison, 5 U.S. (137 Cranch) Marbury stands , 343 U.S. at 645-46 (1952) (Jackson, J., concurring). . The district court did not point to any express consti- point to any express court did not The district EDERALIST 31 36 , 233 F. Supp. 2d 564, 598 (stating “[p]rincipally because the Joint Resolu- , 233 F. Supp. 2d 564, 598 (stating “[p]rincipally F at 582 HE [the President’s] command power is not such an absolute [the President’s] command sys- from that office in a militaristic as might be implied to limitations consistent with a consti- tem, but is subject is whose law and policy making branch tutional Republic dual The purpose of lodging a representative Congress. con- to insure that the civilian would titles in one man was trol the military. Youngstown Id Id. See generally Bush Consistent with the Framers’ balanced design, in Consistent with the Framers’ balanced The Supreme Court has repeatedly recognized that the U.S. that the repeatedly recognized Court has The Supreme 35.36. Reid v. Covert T 34. 37.38. 343 U.S. 579 (1952). 32. 33. 31. M K for the proposition that Article III courts have the authority to review acts by the Execu- for the proposition that Article III courts have tive and Legislative branches. tion complies with all constitutional requirements for an Act of Congress, it should be tion complies with all constitutional requirements regarded for purposes of § 4001(a) as an ‘Act of Congress’”). Sheet & Tube Co. v. Sawyer the role of the Commander-in-Chief. That statement, made during the Korean War, stands as testament That statement, made during the to preserve our system of to the judiciary’s ongoing commitment of war.government, even during times Court As the Supreme War, “[o]urs is a government noted during the height of the Cold that in division there is not of divided authority on the assumption tyranny.” only strength but freedom from 2003] au- without congressional indefinitely, of Mr. Padilla, and detention thorization. powers. and limited consists of separated government \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 9 16-APR-04 9:14 tutional provision granting the power claimed by the President. the power claimed provision granting tutional Constitution that confined the nature and power of the Constitution that confined the Presidency. phatically rejected the exercise of military power over civilian af- the exercise of military power phatically rejected fairs. As Justice Jackson noted, dilla’s case, a President sought arbitrarily to expand his powers dur- dilla’s case, a President sought arbitrarily crisis.ing a perceived national security of the Korean In the midst strike. War, steelworkers threatened a national C Y 18178_nlr_48-1-2 Sheet No. 27 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 27 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 27 Side B 04/27/2004 12:08:32 M K C Y Ex [Vol. 48 Moreover, the Court recog- Moreover, the 42 41 are strikingly similar to the facts of Mr. are strikingly similar to the facts 44 Milligan petitioned for a writ of habeas corpus, Milligan petitioned for a writ of NEW YORK LAW SCHOOL LAW REVIEW The Supreme Court rejected President Truman’s President Court rejected The Supreme Milligan 46 was not the first time the Supreme Court stayed the was not the first The government argued then, as it does in Mr. Pa- The government argued then, as 39 , the government was rebuffed when it attempted to was rebuffed when it attempted , the government The Supreme Court ruled that where civil courts are The Supreme Court ruled that 47 They were tried before a military commission and sen- They were tried before a military 43 45 at 587-88. at 583. . at 107. . at 5-6. . at 587. . at 120-21. at 589. The Court found that no such authority flowed from any such authority found that no The Court Id. Id Id Id Id Id. Id Id. 40 Youngstown The facts of 46. 47. 45. 43.44. 71 U.S. (4 Wall) 2 (1866). 41. 42. 40. 39. dilla’s case, that Milligan had violated the laws and usages of war dilla’s case, that Milligan had violated parte Milligan a civilian for violating the use a military commission to prosecute law of war. hand of a wartime President who improperly claimed that his war President who improperly claimed hand of a wartime arena. his intrusion into the domestic powers authorized In 48 believed mills because he over the steel the military to take ordered the na- jeopardize would seriously to steel production that an end tional defense. \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 10 16-APR-04 9:14 tenced to death. commission violated his constitu- claiming that trial by a military tional rights. nized that prior cases had upheld the President’s exercise of power cases had upheld the President’s nized that prior to day-to-day only when it directly related as Commander-in-Chief of active combat. fighting in a zone peace or war, a civilian may not be functioning, whether in time of tried by the military. of the sources that President Truman claimed of the sources that – power of the the execute the laws, the obligation to faithfully Commander-in-Chief, or implied. or any power inherent claim that he had the authority to seize the steel mills for the war the steel mills for to seize he had the authority claim that effort. Padilla’s case. a citizen of The government alleged that Milligan, of the Order of American Indiana and a civilian, was a member overthrow the government of the Knights, a militia that aimed to United States.have conspired Milligan and others were alleged to seizing ammunition, building an to assist the Confederate Army by and planning to kidnap the arsenal of weapons, releasing prisoners, Governor. 18178_nlr_48-1-2 Sheet No. 27 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 27 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 28 Side A 04/27/2004 12:08:32 49 If the 49 54 Cramer v. United The Supreme ’s analysis to find that 48 The saboteurs ad- see also held that President 51 Quirin related more closely to related more closely and 50 Quirin Quirin case apart from Mr. Padilla’s Court considered the habeas pe- Court considered Mr. Padilla never has. Second, the Quirin Quirin 55 Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956). Colepaugh v. Looney, 235 F.2d 429 (10th Ex parte Quirin defendants acknowledged their status as defendants acknowledged their . THE JOSE PADILLA STORY JOSE PADILLA THE see also relied exclusively upon Quirin , concerned a German soldier who attempted to infiltrate the , concerned a German soldier who attempted civilian co-conspirators, who assisted the Nazi sabo- civilian co-conspirators, who assisted In a narrow holding, In a narrow , Haupt v. United States, 330 U.S. 631 (1947); Quirin , 317 U.S. at 20 Colepaugh 52 at 47. 71 U.S. at 122. . at 24-25. . at 26-27. , concluding that , like Quirin Quirin Id. See, e.g. Id Id. Id Court found that Congress, in the Articles of War, estab- Court found that Congress, in The district court in Mr. Padilla’s case chose not to rely on in Mr. Padilla’s case chose not The district court Several features set the 53 55. 50. U.S. 1 (1942); 317 54. 51. 317 U.S. 1. 52. 53. 49. 48. M K States, 325 U.S. 1 (1945). Colepaugh United States. Colepaugh could be tried by a military commission. Roosevelt, pursuant to the Articles of War, had the authority to or- to the Articles of War, had the Roosevelt, pursuant of German soldiers who had der the trial by military commission hostile acts during a declared come behind our “lines” to perform war. 2003] to military jurisdiction. therefore subject and was Milligan \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 11 16-APR-04 9:14 Quirin lished the crimes with which the saboteurs were charged lished the crimes with which the – a fact soldiers of a foreign army. case. First, the teurs in the U.S., were prosecuted in federal district court. teurs in the U.S., were prosecuted mitted their status as German soldiers.mitted their status The only issue before the order the sabo- was whether the President could Supreme Court a civilian crimi- a military commission rather than teurs tried before nal court. titions of German soldiers who landed on U.S. shores to engage in soldiers who landed on U.S. shores titions of German during World War II. acts of military sabotage Mr. Padilla’s situation. The Court disagreed.a zone not seized in a civilian, who was Milligan, the Con- not a member of and who was combat operations of active as an military commission be tried by a Army, could not federate and functioning. courts were open where the enemy soldier government’s argument regarding Mr. Padilla was correct, these ci- government’s argument regarding been deemed “enemy combat- vilian co-conspirators would have ants” and tried by the military. C Y 18178_nlr_48-1-2 Sheet No. 28 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 28 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 28 Side B 04/27/2004 12:08:32 M K C Y wage 350 supra , See In depend RANCIS peti- [Vol. 48 Quirin , the Articles of Torruella, , 317 U.S. 1. See Toth v. Quarles Quirin at 25, 35, 42 (all limiting See [we] pointed out that Con- Unlike the Unlike , its extent and operation 56 See generally Quirin The difference between The difference considers the extent of the Execu- , that provides the proper , that provides the see also id. Bas v. Tingy, 4 U.S. (7 Dall.) 37, 43 waged 58 See defendants were granted counsel and a Quirin Quirin Ex parte Quirin . . . Quirin .”) (emphasis added). Indeed, Attorney General , its extent and operations are only restricted and , its extent and operations are only restricted In Mr. Padilla’s case, the President is In Mr. Padilla’s 57 ] saboteurs . . . was upheld on charges of violating the ] saboteurs . . . was upheld on charges of , and not ”) (emphasis added). ”) (emphasis added); 594-95 (Doubleday & Co., Inc. 1962). declared provides no support for the indefinite detention of Padilla provides no support for the indefinite detention . The Supreme Court has held that the UCMJ does not give , the President, during a declared war, acted in declared war, acted during a , the President, Quirin , . . . but if a partial war is NEW YORK LAW SCHOOL LAW REVIEW . at 20, 21, 22, 23, 25, 26, 28, 35, 37, 38, 42. . at 20, 21, 22, 23, 25, 26, 28, 35, 37, 38, Quirin et. seq court considered crucial. court considered Id Milligan UTHORITY Quirin jus belli A RIEF , 327 U.S. 1, 7 (1946) (“In at 26-27.of the phrases, context of the opinion the Court’s use In the Quirin as defined by statute B Id. N , I It is thus The Court clarified its reliance on congressional action in subsequent cases. The Court clarified its reliance on congressional 57. addition, In 58. It should also be noted that the statutory premise for 56. IDDLE note 26, at 668 n.132. Thus, it is clear that without trial or access to counsel; the gress, in the exercise of the power conferred upon it by Article I, §gress, in the exercise of the power conferred 8, Cl. 10 of the a part, had by the Articles of War . . . recog- Constitution . . .of which the law of war is by military command”) (internal citations nized the military commission appointed 355 n.22 (1952) (“[T]he military commis- omitted); Madsen v. Kinsella, 343 U.S. 341, sion’s conviction of [the re Yamashita evidence on their behalf. chance to defend themselves and present War, was repealed and replaced by a comprehensive and complete revision of “Military 10 Law” when Congress in 1950 enacted the Uniform Code of Military Justice (UCMJ), U.S.C. § 801 (1950), U.S. 11 (1955); Reid v. Covert, 354 U.S. 1 (1957). tive’s powers only in the context of a declared war.tive’s powers only in the context of a declared 317 U.S. at 26 (stating that “[t]he Commander in Chief, with the power to Constitution thus invests the President, as war which Congress has declared analysis to “time of war”). In a declared war, the Executive’s powers are considerably larger than they are in an undeclared conflict. (1800) (“If a general war is law of war the Commander-in-Chief military jurisdiction over civilians. “nation at war,” “during time of war,” “conduct of war,” was a reference to a congressio- time of war,” “conduct of war,” was a reference “nation at war,” “during nally declared war. regulated by the on our municipal [i.e., national] laws Francis Biddle, who argued the case on the President’s behalf, argued before the Su- Francis Biddle, who argued the case on the and the President’s proclamation were preme Court that the military commissions based on congressional acts – War. the Alien Enemy Act and the Articles of F B 50 that the \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 12 16-APR-04 9:14 acting far outside the traditional Commander-in-Chief power and the traditional Commander-in-Chief acting far outside authorization. without congressional tioners, Mr. Padilla has not been charged with a crime defined by with a crime not been charged Mr. Padilla has tioners, Congress. In power Commander-in-Chief close to the traditional an area – the were self-acknowledged combatants who and trial of detention enemy nation soldiers of a foreign – to con- and he acted pursuant gressional authorization. framework for determining whether the President has the power to whether the President framework for determining these two cases is stark. these two cases is 18178_nlr_48-1-2 Sheet No. 28 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 28 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 29 Side A 04/27/2004 12:08:32 51 Court Milligan — a principle never repu- Waging War, Deciding Guilt: Trying the , in Mr. Padilla’s case, the Presi- Milligan Milligan THE JOSE PADILLA STORY JOSE PADILLA THE and L.J. 1259, 1279-80 (2002) [hereinafter Katyal & Tribe]. ALE Labeling Padilla an “Enemy Combatant” 59 Milligan, 71 U.S. at 118-19. , 111 Y Little v. Barreme, 6 U.S. 170 (1804) (holding that the President’s Com- Youngstown 60 No graver question was ever considered by this court, nor considered by this question was ever No graver concerns the rights of the whole one which more nearly birthright of every American citizen people, for it is the ac- crime, to be tried and punished when charged with cording to law.alone The power of punishment is, that which the laws have provided for through the means are ineffectual there is an immunity purpose, and if they the no matter how great an offender from punishment, or how much his crimes may have individual may be, of justice of the country, or endan- shocked the sense that protection or the law human gered its safety. By and they are rights are secured; withdraw that protection, clamor of an excited at the mercy of wicked rulers, or the people. Ex parte See also The President’s exercise of unbridled power cannot stand. The President’s exercise of unbridled 61 As in The President has unilaterally redefined the term “enemy com- The President has unilaterally redefined 61. 60. Neal K. Katyal & Laurence H. Tribe, 59. B. Executive Law Making by The President has Engaged in Unlawful M K mander-in-Chief powers could not exceed the Article I, “War Power” of Congress). Military Tribunals dent has overstepped the authority granted to him by the Constitu- dent has overstepped the authority tion. Milligan’s today than they were in observations are no less true 1864. “This general principle of 2003] without charge. Padilla indefinitely detain Mr. The give the claims would the President’s that validating understood the citizenry vast power over military – legisla- expense of the at the of individual liberty. ture and diated in subsequent cases — the President little unilateral leaves people on his own suspicion for freedom to craft an order to detain his pleasure in a system of military indefinite warehousing or trial at justice.” \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 13 16-APR-04 9:14 batant” to include any unarmed person outside a zone of combat batant” to include any unarmed act and has “associated” with an who has contemplated a hostile international terrorist organization. an impermissi- This constitutes C Y 18178_nlr_48-1-2 Sheet No. 29 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 29 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 29 Side B 04/27/2004 12:08:32 M K C Y 70 63 and [Vol. 48 Youngs- Territo The , petitioner was 65 Geneva Convention see also In re Territo Quirin, Colepaugh Indeed, Congress has expressly Indeed, Congress defendants also acknowledged The 66 69 Colepaugh defendants acknowledged that they were defendants acknowledged that The Quirin NEW YORK LAW SCHOOL LAW REVIEW 68 . art. I, § 8, cl. 14. . art. I, § 8, cl. 10. , 327 U.S. at 5. 62 , 18 U.S.C. § nation- 2332(b) (2004) (conspiracy to kill United States ONST ONST 67 In fact, a reading of The authority of the sovereign in wartime “to take the per- the sovereign in wartime “to take The authority of Yamashita See, e.g. 71 64 Court held: “In the framework of our Constitution, the Presi- the framework of our Constitution, Court held: “In No court has ever held that a civilian, not found in a zone of held that a civilian, not found No court has ever The Constitution grants Congress, not the President, the the President, Congress, not grants The Constitution 68.69. 317 U.S. at 21. 70. 235 F.2d at 432. 71. 156 F.2d 142 (9th Cir. 1946). 64.65. C U.S. 66. v. United States, 12 U.S. (8 Cranch) 110, 122, 126 (1814). Brown 67. U.S. at 587. 343 63. C U.S. 62. I Additional to the Geneva Conventions, Aug. 12, 1949, and Relating Protocol als); 18 U.S.C. § (2004) (bombing and bombing conspiracy); 18 844 U.S.C.§ destruction); 18 2332a(a)(1) (2004) (conspiracy to use weapons of mass U.S.C.§ 2441 (2004) (defining war crimes). to the Protection of Victims of International Armed Conflicts, June 8, 1977, art. 43(2), to the Protection of Victims of International Protocol I]; 1125 U.N.T.S. 3, 23 [hereinafter Additional (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 4(2), 6 U.S.T. (III) Relative to the Treatment of Prisoners (further defining those combatants 3316, *4-5 [hereinafter Third Geneva Convention] certain members of militias). entitled to prisoner of war status to include Likewise, General Yamashita, a commander in the Japanese army, Likewise, General Yamashita, a after his surrender to U.S. was subject to military jurisdiction forces. active combat operations and not an acknowledged member of a and not an acknowledged active combat operations as an enemy combatant.foreign army, may be designated As previ- ously noted, the under orders of the German members of the German army acting High Command. 52 by inter- as defined “unlawful combatant” of the term ble expansion law. national Water,” on Land and Captures “make Rules concerning power to of Na- against the Law . . . Offences define and punish and “to tions.” \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 14 16-APR-04 9:14 sons and confiscate the property of the enemy” is “an independent the property of the enemy” is sons and confiscate of Congress, not the President. substantive power” criminalized the conduct the President alleges Mr. Padilla to have conduct the President alleges Mr. criminalized the engaged in. membership in a foreign army. town refutes the see that the laws are faithfully executed dent’s power to be a lawmaker.” idea that he is to captured in his Italian Army uniform on the “field of battle.” captured in his Italian Army uniform 18178_nlr_48-1-2 Sheet No. 29 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 29 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 30 Side A 04/27/2004 12:08:32 53 ,65 Presi- supra ROTOCOL The Presi- P Noncomba- 73 . Q. (forthcoming AW 77 Jennifer Elsea, L , 95 (T. Johnson, ed., TUD S See also indicating that civilians ANDBOOK 76 Third Geneva Convention, H UMANITARIAN RESIDENTIAL AW H L see also 72 , 33 P No statute, treaty or judicial opin- No statute, treaty 75 74 note 62; note 62, at arts. 43, 48, 1125 U.N.T.S. 3, 16 I.L.M. note 62, at arts. 43, 48, 1125 U.N.T.S. 3, 16 note 62, at art. 43(2). ANDBOOK OF PERATIONAL O H , supra supra supra HE 337 F.3d 335 (4th Cir. 2003) (Wilkinson, J., concurring). 337 F.3d 335 (4th Cir. 2003) (Wilkinson, THE JOSE PADILLA STORY JOSE PADILLA THE RMY , , T A LECK TOF Milligan, 71 U.S. (4 Wall.) 2, 131(1866). ’ F EP , Brief of Amici Curiae Experts on the Law of War at 10-12. IETER shows that the Supreme Court’s use of the term “enemy Court’s use of the the Supreme shows that D U.S. D See also See Id. See see also Ex parte The rules of engagement cards that American soldiers carry The rules of engagement cards Under the law of war, combatants are defined primarily as of war, combatants are defined Under the law Combatant is a term of art and cannot be read in isolation. of art and cannot be read in Combatant is a term In 77. Additional Protocol I, 76. 72. v. Rumsfeld Hamdi 74. 75. 73. Protocol I, Additional M K (1995); Additional Protocol I, Sept. 2003) (for a complete discussion of the distinction between the two categories and how historically we have treated the different categories) available at http://www. nimj.org.; 2003). 1391; dential Authority to Detain Enemy Combatants tants, which include civilians, are those remaining individuals who tants, which include civilians, are into battle state “Fight only Combatants,” 2003] Yamashita “enemy soldier.” with the term is synonymous combatant” re- More Hamdi of Yaser upheld the classification Fourth Circuit cently, the by the he was seized precisely because combatant” as an “enemy combat. in a zone of active military armed forces of a party to a conflict.” “members of the \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 15 16-APR-04 9:14 are not armed and should not be shot.are not armed and should not of the armed “Members are combatants, that is to say, they forces of a Party to a conflict . . . in hostilities.” have the right to participate directly ion has ever defined the term “enemy combatant” as the President the term “enemy combatant” ion has ever defined has. in the the meaning of the term “combatant” order to understand the rationale behind that law of war, it is important to understand categorization. distinction be- The law of war makes a fundamental tween civilians and combatants. note 62, at art. 4(2) (further defining those combatants entitled to prisoner of war note 62, at art. 4(2) (further defining those status to include certain members of militias). dent’s unilateral redefinition of “enemy combatant” falls outside redefinition of “enemy combatant” dent’s unilateral and other custom- the 1949 Geneva Conventions the provisions of law. ary norms of international C Y 18178_nlr_48-1-2 Sheet No. 30 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 30 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 30 Side B 04/27/2004 12:08:32 M K C Y RMED supra ANUAL A [Vol. 48 M IELD Civilians at the , F ONDUCT OF C ARFARE HE W - T AND ]; Additional Protocol I, AW L L ARFARE AW OF W L note 79, at para. 31; Additional Protocol The stringent requirement of The stringent requirement HE AND In other words, a civilian cannot In other words, 81 L , T NTERNATIONAL 80 , supra RMY note 62, at art. 51(3). AW OF 78 A 8 (1996)). , ARFARE supra , para. 3-3.a. (1976). W 110 - 31, I T OF THE AND ’ L Major Lisa L. Turner & Major Lynn G. Norton, Major Lisa L. Turner & Major Lynn G. Norton, EP ATTLEFIELD ee NEW YORK LAW SCHOOL LAW REVIEW AMPHLET B PERATIONS P AW OF O L IR ., U.S. D 51 A.F.L. Rev. 1, 24 fn. 135 (2001) (“The current definition of a combat- 51 A.F.L. Rev. 1, 24 fn. 135 (2001) (“The current ORCE A F But the law of war sharply limits the situations in which limits the situations law of war sharply But the IR AW ON THE See, e.g., See, e.g 79 , L note 68, at art. 48. participation in combat is designed to protect the civilian pop- combat is designed to protect the participation in Combatants, who are members of the armed forces of a party forces of a of the armed who are members Combatants, Whether an individual is in the armed forces of a party to a Whether an individual is in the “infiltrating the domes- Contrary to the government’s position, 80. Additional Protocol I, 81. A 79. 78. supra ONFLICT AND OGERS note 62, at art. 50(1); s Tip of the Spear, a party to the conflict except medical person- ant is any member of the armed forces of nel and chaplains. All other parties are considered to be civilians.” ) (quoting, A.P.V. R I, C 27-10, para. 60 (1956) [hereinafter L 54 are not force and who military of the participants’ are not members to take up arms. authorized they are attack wherever for military are lawful targets to a conflict, found. \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 16 16-APR-04 9:14 direct of war.ulation during times rule would allow the use of Any other population on the large parts of the civilian military force against the enemy forces. were associated with and aiding theory that they directly participated in combat conflict and whether he or she has is a combatant.determines whether that person In Mr. Padilla’s that he is a combatant and argues case, the government presumes enemy soldier and is that whether an individual is an acknowledged battlefield combat are pertinent found engaging in conventional and “unlawful” enemy com- only to the distinction between “lawful” batants. Padilla was a In fact, the government has yet to prove Mr. combatant at all. acts of sabotage or terror in tic territory of a belligerent to commit does not subject that individ- furtherance of the enemy’s war efforts unless the saboteur is also a ual to military arrest and detention, civilians can become lawful targets of military action.civilians can become Civilians can- such time as they military attack “unless and for not be targets of in hostilities.” take a direct part be treated as a combatant except during the actual time he or she is except during the actual be treated as a combatant in hostilities. taking a direct part 18178_nlr_48-1-2 Sheet No. 30 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 30 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 31 Side A 04/27/2004 12:08:32 55 87 RIEF OF B see also OMMENTARY ON THE at 516 (“Direct partici- , C id. ROSS C ED (2d ed. 1920); R 86 at 13 and references cited therein. RECEDENTS Mr. Padilla did not infiltrate any- did not infiltrate Mr. Padilla AR P 82 W 285-88 (Cambridge University Press, 2d. Ed. 2000); 285-88 (Cambridge University Press, 2d. Ed. OMMITTEE OF THE , AW OF AW AND C AR L L THE JOSE PADILLA STORY JOSE PADILLA THE W Milligan, 71 U.S. (4 Wall) 2 (1866); Third Geneva Conven- 619 (C. Pilloud, et al., eds., 1987) (distinguishing between 619 (C. Pilloud, et al., eds., 1987) (distinguishing ILITARY AW OF Even if Mr. Padilla “associated” with a terrorist Even if Mr. Padilla note 78, at 3-4. L , M 84 NTERNATIONAL HE I supra XPERTS ON THE , T ROTOCOLS E In its analysis, the government fails to acknowledge the the government fails to acknowledge In its analysis, P INTHROP The conduct in which the government alleged Mr. Padilla government in which the The conduct note 62. See, e.g., Ex parte See, e.g, ETTER 85 W URIAE 83 D Congress has explicitly barred the Executive from detaining Congress has explicitly barred The history behind the statute clearly indicates that it applies The history behind the statute clearly The government ignores these fundamental principles of the ignores these fundamental principles The government C supra 85. Brief for Respondent-Appellant at 22-24, Padilla v. Rumsfeld, No. 03-2235 (L), 86. 87. Howe v. Smith, 452 U.S. 473, 479 n.3 (1981). 82. Elsea, 83. arrived in his own country on a commercial airliner, unarmed, in civil- Padilla 84. ILLIAM MICI DDITIONAL NGRID M K C. Prohibited by 18 U.S.C. § Padilla’s Detention is Specifically 4001(a) tion, 03-2438 (2nd Cir. 2003), available at http://news.findlaw.com/hdocs/docs/padilla/pa- dillarums72203gbrf.pdf. W direct participation of a combatant as exemplified by battlefield activity and that of direct participation of a combatant as exemplified for the war effort); civilian assistance which provides support pation in hostilities implies a direct causal relationship between the activity engaged in pation in hostilities implies a direct causal and place where the activity takes place.”); and the harm done to the enemy at the time I any citizen without specific congressional authorization. 18 U.S.C. any citizen without specific congressional § “No citizen shall be imprisoned or otherwise 4001(a) states that pursuant to an Act of Con- detained by the United States except gress.” The language of the statute is direct and unambiguous. ian clothing, and used his U.S. passport. A to Mr. Padilla’s case. 1971 to repeal Section 4001(a) was enacted in (the “1950 Act”), which was en- the 1950 Emergency Detention Act A 2003] of the enemy army.” member \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 17 16-APR-04 9:14 thing. engaged – organiza- of a terrorist with members loosely associating acts in future hostile plotting to engage tion and – consti- does not in combat. participation tute direct conduct such Therefore, would be a lawful a civilian into a combatant who cannot transform military target. before one can status must be determined fact that one’s military enemy combatant. be designated an association, it would not be sufficient to make him a combatant. not be sufficient to make him association, it would is not a com- compel a conclusion that Mr. Padilla law of war which batant. C Y 18178_nlr_48-1-2 Sheet No. 31 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 31 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 31 Side B 04/27/2004 12:08:32 M K , C Y 88 Howe This [Vol. 48 91 89 .” (No. 03-2235), available at Rumsfeld sabotage The text and legislative history Second, §was enacted 4001(b) 90 92 .” Howe v. Smith . 92-116 (1971), U.S.C.C.A.N. 1435, 1438. O NEW YORK LAW SCHOOL LAW REVIEW . N EP H.R. R Id. see Although Congress had considered simply repealing the 1950 had considered simply repealing Although Congress The government claims, however, thatThe government claims, however, 4001(a) per- “Section 89. 50 U.S.C. §§90. (emphasis added). 812-13 (1950) 88. Detention Act, 50 U.S.C. § Emergency 812, 64 Stat. 1019 (1950) (repealed 92. Padilla v. Bush, 233 F. Supp. 2d 564, 598 (S.D.N.Y. 2002) (discussing 91. Brief for Respondent-Appellant at 36, 1971); Act, it feared that repeal alone would not make sufficiently clear repeal alone would not make Act, it feared that from detaining cit- branch was strictly prohibited that the Executive congressional approval.izens without specific As the report of the concluded, “Re- Committee makes clear, Congress House Judiciary executive action, leave citizens subject to arbitrary peal alone might limits of executive authority . . . with no clear demarcation of the or other detention of the Committee believes that imprisonment in which a statutory authori- citizens should be limited to situations zation, an act of Congress exists.” 56 and in communist invasion War fears of the height of Cold acted at War II. during World internment camps to the Japanese response de- “in time of invasion, the President Act authorized The 1950 enemy,” to of a foreign in aid of war, or insurrection clared state he could during which Emergency” an “Internal Security proclaim belief that detain persons if there was reasonable apprehend and with others engage in, or probably will conspire they “probably will of espionage or of to engage in, acts \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 18 16-APR-04 9:14 452 U.S. 473). http://news.findlaw.com/hdocs/docs/padilla/padillarums72203gbrf.pdf. eighty years earlier, in completely different legislation than eighty years earlier, in completely clearly establish that Congress intended to prohibit the President clearly establish that Congress intended from detaining any American – suspected spies and sabo- including teurs – without congressional authorization. tains to – and was intended to address – civilian detentions, not the the immediately ensuing subsec- detention of enemy combatants: tion, 18 U.S.C. § speaks to the control of the Attorney 4001(b), correctional institutions.” General over ‘Federal penal and argument is wrong for at least four reasons.argument is wrong for at least the Executive First, of the statute as read by the “cannot overcome the plain language Supreme Court in 18178_nlr_48-1-2 Sheet No. 31 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 31 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 32 Side A 04/27/2004 12:08:32 57 Section 2 94 . THE JOSE PADILLA STORY JOSE PADILLA THE 95 The two share only a code designation, not an origin designation, share only a code The two to Order the Military To Seize and Detain Padilla to Order the Military To Seize and 93 Act of Mar. 3, 1891, § amended 4, 51st Cong., ch. 529, 26 Stat 839, 839, as that the President is authorized to use all necessary and that the President is authorized to organizations, or appropriate force against those nations, committed, persons he determines planned, authorized, on September or aided the terrorist attacks that occurred or persons, in 11, 2001, or harbored such organizations terrorism order to prevent any future acts of international organizations against the United States by such nations, or persons. See The government argues that “[t]he authority to use ‘all neces- The government argues that “[t]he The district court acknowledged that while18 U.S.C. §The district court acknowledged 4001 (a) 94. S.J. Res. 23, 107th Cong., Pub. L. No. 107-40, 115 Stat. 224 § 2(a) (2001) 95. Joint Resolution § 2(a) 93. D. the President with Authority The Joint Resolution Does Not Provide M K by Act of May 14, 1930, § 2, 71st Cong., ch. 274, 46 Stat. 325, 325. [hereinafter Joint Resolution § 2(a)]. sary and appropriate force’ against organizations determined by the sary and appropriate force’ against September 11 attacks necessarily President to be responsible for the 2003] § 4001(a). \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 19 16-APR-04 9:14 or a meaning. Third, § for “military contains an exception 4001(b) confined or persons institutions military reformatory penal or but §therein,” not. 4001(a) does reflects the fact This difference that §General, the Attorney applies only to explicitly 4001(b) whereas § of the federal govern- 4001(a) applies to the entirety ment. import the military exception There is simply no reason to of § 4001(b) into § 4001(a). enacted § Finally, Congress to 4001(a) in which Japanese camps of World War II repudiate the internment the auspices subject to executive detention under Americans were of War.of the Department legislative history further under- This government, not applies to the entire federal scores that the statute General. only to the Attorney (a) of the Joint Resolution reads as follows: (a) of the Joint Resolution reads bars Mr. Padilla’s current detention without authorization from bars Mr. Padilla’s current detention may be found in the Joint Res- Congress, authority for his detention of Force” (“AUF”), olution “Authorization for the Use C Y 18178_nlr_48-1-2 Sheet No. 32 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 32 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 32 Side B 04/27/2004 12:08:32 M K , . C Y 96 [Vol. 48 . S9416 (daily ed. . S9417 (daily ed. “such nations, EC EC . R . R . J5648, H5680 (daily ed. EC ONG Guidry v. Sheet Metal ONG (No. 03-2235), available at . R Congress could have au- Congress could 147 C ONG 147 C 98 Rumsfeld 147 C see also see also See ” who committed, planned, authorized or ” who committed, NEW YORK LAW SCHOOL LAW REVIEW Busic v. United States, 446 U.S. 398 (1980); Radzanower v. Touche . Little v. Barreme, 6 U.S. (2 Cranch) 170. As is evident from the legislative , 426 U.S. 148, 154 (1976); United States v. United Continental Tuna Corp The AUF permits the use of force against permits the The AUF . See, e.g., Cf This principle is no less true when the general statute is the This principle is no less true when 97 In enacting the AUF, Congress authorized a limited use of a limited authorized the AUF, Congress In enacting Every applicable canon of statutory construction mandates the Every applicable canon of statutory 99 98. Joint Resolution §99. 2(a). 97. 96. for Respondent-Appellant at 31, Brief Sept. 14, 2001) (statement of Sen. Feingold); Sept. 14, 2001) (statement of Sen. Feingold); Sept. 14, 2001) (statement of Sen. Levin). Sept. 14, 2001) (statement of Rep. Conyers); Sept. 14, 2001) (statement of Rep. Conyers); 425 U.S. 164, 168 (1976); Morton v. Mancari, 417 U.S. 535 (1974). Ross & Co history Congress did not intend to authorize the broad power claimed by the President history Congress did not intend to authorize or the authority to infringe on civil liberties. http://news.findlaw.com/hdocs/docs/padilla/padillarums72203gbrf.pdf. 58 enemy combatants.” to seize and detain the authority embraces with this the President not provide the AUF does However, authority. force. \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 20 16-APR-04 9:14 later-enacted statute. As the Court held in organizations or persons organizations or who “harbored” 11 terrorist acts and those aided the September or persons. such nations, organizations thorized the use of force against any person who associated with the of force against any person who thorized the use 11, but it did not.perpetrators of September While the President conspired with Mr. Padilla associated with and has claimed that Mr. Padilla is a he has never claimed that members of al Qaeda, of al Qaeda. or that he harbored members member of al Qaeda simply does not apply to Mr. Padilla.Thus, the statute Its language assertion that the President may does not support the government’s of persons against whom Con- unilaterally expand the categories or military detention without gress has authorized the use of force charge. conclusion that § provides no justification for the military de- 2(a) civilian seized by military tention without charge of an unarmed far from any zone of combat.personnel in the United States, The held that a general statute cannot Supreme Court has repeatedly statute, unless the general statute take precedence over a specific that Congress intends it to con- contains a clear statement asserting trol. 18178_nlr_48-1-2 Sheet No. 32 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 32 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 33 Side A 04/27/2004 12:08:32 59 102 103 101 specific authorization from the specific authorization infer “[i]t is an elementary tenet of statu- an elementary tenet “[i]t is 100 , THE JOSE PADILLA STORY JOSE PADILLA THE , 493 U.S. at 375. Endo, 323 U.S. 283, 300 (1944). at 375 (internal quotations omitted). See, e.g., Guidry Id. Ex parte These fundamental principles apply equally in times of peace These fundamental principles apply Absent a clear statement, no general authorization for the use Absent a clear statement, no general Section 2(a) is a broad statute, rapidly enacted four days after four days rapidly enacted 2(a) is a broad statute, Section 102. 100. 493 U.S. 365 (1990). 101. 103. M K and war. Our courts have repeatedly considered Executive branch and war. Our courts have repeatedly for the use of force should be claims that a broad authorization seizures away from zones of active interpreted implicitly to permit of force may permissibly be interpreted to authorize the detention of force may permissibly be interpreted of an American citizen without charge. court erred in The district ignoring this rule of statutory interpretation. the cases giv- Under over general statutes, that result ing precedence to specific statutes would be clear enough. becomes This fundamental principle that a general enactment al- clearer when the government claims lows it to invade the liberty of citizens. Court has As the Supreme to find implied powers in a held: “we must assume, when asked authority, that the law makers in- grant of legislative or executive on the citizen than was clearly tended to place no greater restraint language they used.” and unmistakably indicated by the 2003] Pension Fund Workers Nat’l the September 11 with the War Powers Res- attacks, and consistent assault against the President to launch a concerted olution to allow its Taliban protectors.al Qaeda and By contrast, 18 U.S.C. § precisely to the question of is a specific statute, tailored 4001(a) of American citizens.executive detention Section 2(a) does not § American citizens; 18 U.S.C. specifically address 4001(a) does. § not speak of detention; 18 U.S.C. Section 2(a) does 4001(a) does. the deten- conclude that Section 2(a) authorizes The only way to citizens is to tion of American and this is precisely what the Su- broad words of the resolution courts against doing. preme Court has continually warned \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 21 16-APR-04 9:14 tory construction that where there is no clear intention otherwise, a intention otherwise, there is no clear that where tory construction one, nullified by a general controlled or statute will not be specific of the enactment.” of the priority regardless C Y 18178_nlr_48-1-2 Sheet No. 33 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 33 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 33 Side B 04/27/2004 12:08:32 M K C Y 105 to 107 108 [Vol. 48 France, when Congress had authorized Notably, the Patriot Act did not Notably, the Patriot from 104 106 at 126 (the right “to take the persons and confiscate at 126 (the right “to take the persons and France); Brown v. U.S., 12 U.S. (8 Cranch) 110, 128- France); Brown v. U.S., 12 U.S. (8 Cranch) to id. NEW YORK LAW SCHOOL LAW REVIEW Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 § 2(a) (2001). Little v. Barreme, 6 U.S. (2 Cranch) at 177 (imposing financial liability on Little v. Barreme, 6 U.S. (2 Cranch) at 177 8 U.S.C. § 1226(a) (2003). See See See The district court’s interpretation of §The district court’s 2(a) ignores the clear Furthermore, in the months immediately following September immediately in the months Furthermore, 105. USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001). 106. 107. A fact that must be given credence in evaluating the Executive branch’s cur- 108. 104. the seizure only of ships sailing 29 (1814) (“When war breaks out, the question, what shall be done with enemy prop- 29 (1814) (“When war breaks out, the question, erty in our country, is a question . . . properthe legislature, not for the consideration of of the executive or judiciary.”); substantive power” of Congress); Con- the property of the enemy” is “an independent of man “engaged in the rebellion, as a rad v. Waples, 96 U.S. 279, 284 (1877) (property giving constant aid and comfort to the in- member of the Confederate Congress, and seized without congressional warrant); Sala- surrectionary government” could not be (2d Cir. 1918) (“wherever the enemy is mandra v. New York Life, 254 F. 852, 859 Congress may determine there exists the present, and where his property is situate, jurisdiction of Congress the power exists, element of danger, and to the extent of the the limits of the necessity.”). not only of seizure, but of disposition to rent claim of congressional authorization. a naval officer who had seized a ship as a prize of war pursuant to orders from the a naval officer who had seized a ship as President authorizing the seizing of sailing statement of alien detention and wrongly presumes the same Con- detention and wrongly presumes statement of alien the Presi- without a clear statement or guidelines, gress authorized indefinitely.dent to detain citizens Clearly, when enacting § 2(a), the detention of American Congress did not intend to authorize combat.citizens seized outside zones of active with ele- Consistent §mentary tenets of statutory construction, 2(a) cannot be read to detention of American citizens authorize the military seizure and without charge. intent” Its language reflects no “unmistakable 60 force pro- to use that an authorization and they have held combat, such implicit authority. vides no to punish authority the President’s acted to increase 11, Congress suspected terrorists.and detain Act, States Patriot The United specifically autho- after the Joint Resolution, passed by Congress terrorist ties. to detain aliens suspected of having rizes the President time and are gov- can occur for limited periods of Such detentions safeguards. erned by procedural \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 22 16-APR-04 9:14 amend or suspend the clear provisions of 18 U.S.C. § the clear provisions of 18 U.S.C. amend or suspend 4001(a). grant the Executive the power to detain American citizens without grant the Executive the power to charge – a power denied to it in § 4001(a). 18178_nlr_48-1-2 Sheet No. 33 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 33 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 34 Side A 04/27/2004 12:08:32 61 116 and 110 , predated Quirin . 61, 80 (1966) (question- 115 IST Ex parte Quirin Ex parte . H T 109 , However, the Court also However, the 113 , 1 J. S.C as not “a happy precedent.” defendants’ writ of habeas corpus precedent is questionable. Justice at 670. However, the discretion to determine decision). Prize Cases Id. Quirin Quirin Quirin Quirin President Roosevelt’s actions were tethered President Roosevelt’s actions were THE JOSE PADILLA STORY JOSE PADILLA THE Padilla may be Detained Padilla may The ‘Saboteurs’ Case considered the claims of ship owners whose considered the The Joint Resolution cannot legitimately be The Joint Resolution to support its findings. to support three are inapposite. All saboteurs were acknowledged members of a for- saboteurs were acknowledged members 114 Quirin, 317 U.S. at 21. 111 , Quirin Prize Cases . at 670-71. . at 668. To be sure, the President has the authority to “determine what Ex parte Quirin, E. that Supports the Finding Judicial Decision No Other See Ex parte Id Id The Supreme Court found the President had authority as found the President had The Supreme Court In The The district relied on the relied on the The district 112 116. David J. Danelski, 115. 109.110. 67 U.S. (2 Black) 635 (1863). 111. U.S. 1 (1942). 317 112. 212 U.S. 78 (1909). 113. 67 U.S. at 666. 114. M K ing the continued validity of the the appropriate level of force does not somehow give him a mandate to act in excess of the appropriate level of force does not somehow give him a mandate to act in excess the authority that has been given him. degree of force the crisis demands.” to congressional legislation, including the Articles of War.to congressional legislation, including As stated above, the congressional statutes, and were eign army, were held pursuant to innocence. given an opportunity to assert their property was seized by United States forces in zones of active com- by United States forces in zones property was seized bat. Avoiding its usual procedures, the Supreme Court issued a sum- Avoiding its usual procedures, mary order denying the almost immediately after the oral argument.almost immediately after the oral the eight sabo- Six of 2003] \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 23 16-APR-04 9:14 read to permit the detention without charge of an American citi- detention without charge of read to permit the of Mr. Padilla surrounding the detention zen. The circumstances surrounding initiation cannot be compared with the circumstances ports during the Civil War. of the blockade of the southern Commander-in-Chief to seize property in what had become enemy to seize property in what had Commander-in-Chief of the secession. territory by virtue the Presi- that Congress had likewise authorized found it crucial for the situation presented there dent’s use of force — specifically, an insurrection. 18 U.S.C. § 4001(a). years, Congress has pre- For more than thirty citizen not grounded in a cluded any detention of an American statute. The force of the Moyer v. Peabody Moyer v. Frankfurter has referred to C Y 18178_nlr_48-1-2 Sheet No. 34 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 34 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 34 Side B 04/27/2004 12:08:32 M K , C Y stare Moyer Moyer [Vol. 48 is likewise misplaced. , the Governor detained with- 119 The Supreme Court affirmed the Professor Katyal and Professor Tribe Katyal and Professor Professor 120 ONCLUSION “is more plausibly classified with those plausibly classified “is more C 117 , whose force as precedent has been dimin- , whose force as note 60, at 1304. Quirin Moyer v. Peabody supra . NEW YORK LAW SCHOOL LAW REVIEW Korematsu . at 84. Unlike the situation here, Moyer’s detention occurred pur- Unlike the situation here, Moyer’s 118 Id. Id explicitly provided by a state statute .” 121 Never before has a President designated as an “enemy combat- Never before has a President designated Reliance upon 117. 118. Katyal & Tribe, 121. 212 U.S. at 84 119. 212 U.S. 78 (1909). 120. ant” a citizen who had not sworn allegiance to a foreign national by ant” a citizen who had not sworn was not in the zone of combat. joining its armed forces and who Executive has no support in the This unprecedented action by the a specific mandate of Congress, text of the Constitution, it violates authority.and it is unsupported by judicial In our system of govern- defines the basis on which ment, the legislature, not the President, a citizen may be deprived of liberty. the President Where, as here, is the obligation of the judiciary has exceeded his authority, it 62 after the not until months and it was quickly executed teurs were down an Court handed that the of those petitioners execution order.to justify its summary opinion to a different By then, coming was impossible. conclusion \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 24 16-APR-04 9:14 suant to a specific state statute. have suggested that have suggested action, noting that it was undertaken with legislative authoriza- action, noting that it was undertaken tion. decisions like whose undimin- events, rather than with those ished by subsequent principles of counsels maintenance under ished momentum decisis does not support the asserted proposition that the Commander-in- the asserted proposition that the does not support Mr. Padilla’s military detention.Chief clause authorizes In whom he considered to be leaders out charge those union officials of the incipient insurrection. the governor of Colorado, then a frontier state seeking to establish Colorado, then a frontier state seeking the governor of officials that the a labor action by union the rule of law, confronted an insurrection.Governor deemed In an exercise of an emergency power 18178_nlr_48-1-2 Sheet No. 34 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 34 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 35 Side A 04/27/2004 12:08:32 63 THE JOSE PADILLA STORY JOSE PADILLA THE M K 2003] citizen of each individual the liberty III to safeguard under Article authority. his lawful from exceeding the President by prohibiting \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 25 16-APR-04 9:14 C Y 18178_nlr_48-1-2 Sheet No. 35 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 35 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 35 Side B 04/27/2004 12:08:32 M K C Y , 157 [Vol. 48 The court 122 petition for cert. granted Article I, § leg- 1, vests all 123 , 343 U.S. at 644 (“Congress, not the Executive, EDITOR’S NOTE EDITOR’S Youngstown NEW YORK LAW SCHOOL LAW REVIEW On December 18, 2003, the United States Court of Appeals for Court of Appeals the United States 18, 2003, On December by Mr. Pa- with the main arguments made The court agreed 1. Inherent Power the President is entitled to The Second Circuit agreed that 122. The court noted that these separation-of-powers concerns are heightened 123. Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003), L. Ed. 2d 1226 (U.S. Feb. 20, 2004) (No. 03-1027). when the Commander-in-Chief powers are used domestically rather than abroad, citing Justice Jackson’s opinion in should control utilization of the war power as an instrument of domestic policy) (Jack- son, J., concurring). 64 \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 26 16-APR-04 9:14 islative authority in Congress. Article I, § 8, cl. 10, specifically gives punish offenses against the law of Congress the power to define and the Second Circuit remanded Jose Padilla’s case to the district court case to the district Jose Padilla’s Circuit remanded the Second the Sec- corpus directing a writ of habeas to issue with instructions custody within to release Mr. Padilla from military retary of Defense 30 days. that the government could The court of appeals noted who might bring appropriate civilian authorities transfer him to witness for against him or detain him as a material criminal charges grand jury proceedings. G. Patel; namely: Donna R. Newman and Andrew dilla’s attorneys, constitutional authority as Commander-in-Chief (1) the President’s on American soil him to detain American citizens did not empower Act prohibits de- combat; (2) the Non-Detention outside a zone of express congressional ap- tention of American citizens without authorizing the use of force proval; and (3) the Joint Resolution September 11 attacks did not pro- against the perpetrators of the vide such approval.developed these The court’s opinion further arguments. authority as Commander-in-Chief. great deference in exercising his power is challenged When the exercise of the Commander-in-Chief assigned by the Constitution on the grounds that it invades powers must mediate. to Congress, however, the courts pointed to several specific provisions of Article I supporting the ar- pointed to several specific provisions powers of Article II, §gument that the Commander-in-Chief 2, do not authorize Mr. Padilla’s detention. 18178_nlr_48-1-2 Sheet No. 35 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 35 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 36 Side A 04/27/2004 12:08:32 65 126 , could be was decided Ex parte Quirin Quirin the Civil War case 127 Ex parte Milligan petitioners admitted they saboteurs were charged and and Quirin 125 Quirin Ex parte Milligan THE JOSE PADILLA STORY JOSE PADILLA THE did not control because in that case military did not control because in that Ex parte Quirin , 317 U.S. 1. Quirin Finally, the court noted that the Third Amendment’s that the Third the court noted Finally, . at 727. . at 715. 124 Id Id See generally Quirin The court also addressed the debate between Mr. Padilla and the debate between Mr. The court also addressed The court found 124. 125. 126. 127. 71 U.S. (4 Wall) 2 (1866). M K the government about the precedential value of about the precedential value of the government the United States German soldiers captured in the case involving II, and during World War 2003] nations.habeas the writ of can suspend addition, only Congress In corpus. \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 27 16-APR-04 9:14 tried in civilian courts. prohibition against quartering troops in homes in time of war ex- homes in time troops in against quartering prohibition the pro- also supports prescribed by law” a manner to be cept “in laws. makes the not the Executive, that Congress, position The which the Framers “The level of specificity with court concluded: the lack of any domestic powers to Congress and allocated these II’s catalogue of grant of authority in Article even near-equivalent such power into compels us to decline to read any executive powers clause.” the Commander-in-Chief jurisdiction rested on express congressional authorization to use jurisdiction rested on express congressional charged with violating the laws military tribunals to try combatants of war. authorization As described below, the court found such lacking in Mr. Padilla’s case. In addition, when involving an American civilian tried by a military tribunal. civilian tried by a military involving an American The court held that in 1942, Congress had not enacted 18 U.S.C. §in 1942, Congress had not enacted 4001(a), which ex- citizens without congres- plicitly bars the detention of American sional authorization. Finally, the forces of Germany, a country were soldiers serving in the armed States.formally at war with the United by contrast, in- Mr. Padilla, combatant, and points out that tends to dispute that he is an enemy the civilian accomplices of the harmonized, despite Milligan’s release from military custody.harmonized, despite Milligan’s Al- President to suspend the writ of though Congress authorized the Congress also denied him au- habeas corpus during the Civil War, who were not part of the Con- thority to detain indefinitely civilians of the laws had continued federate Army where “the administration C Y 18178_nlr_48-1-2 Sheet No. 36 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 36 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 36 Side B 04/27/2004 12:08:32 M K C Y en- [Vol. 48 132 This prece- 131 Because the federal courts Because are consistent with the are consistent 128 Milligan by the United States.” limits to a certain extent the broader limits to a certain that citizens cannot be subjected to that citizens cannot both teach that — at a minimum — and The court concluded that the Act means The court concluded that the 130 Quirin of any kind Quirin 129 Milligan Milligan NEW YORK LAW SCHOOL LAW REVIEW , 352 F.3d at 717. and at 716. at 717 (citing 18 U.S.C. § 4001(a) (2004)). holding in while the courts continue to function, military jurisdiction Quirin is required to expand military an Act of Congress jurisdiction. principle that primary authority for imposing military ju- for imposing that primary authority principle citizens lies with Congress. risdiction upon American Even though Thus, both Thus, both Id. Rumsfeld Id. 2. Act The Non-Detention authority that the President lacks inherent Having concluded 3. The Joint Resolution government’s contention that Finally, the court considered the 131.132. Howe v. Smith, 452 U.S. 473, 479 n. 3 (1981) (emphasis in original). Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 § 2(a) (2001). 130. 128. 129. to detain American citizens on American soil outside a zone of to detain American citizens on the court turned to combat without congressional authorization, “No citizen shall be impris- the Non-Detention Act, which provides: United States except pursuant to oned or otherwise detained by the an Act of Congress.” 66 courts.” in the Federal unimpaired \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 28 16-APR-04 9:14 what it says. the Act as “pro- The Supreme Court has characterized scribing detention were open where Milligan was detained, he could not properly be he could not properly was detained, where Milligan were open a military tribunal.tried by concluded: The Second Circuit dent, plus the legislative history of the Non-Detention Act, dent, plus the legislative history applies to “detentions by the Presi- convinced the court that the Act crisis.”dent during war and times of national military deten- Thus, tions are within its ambit. intended that Moreover, Congress approve detentions.exceptions to the Act must specifically Propo- the criticism that it left the nation nents of the measure answered by asserting that the ordinary defenseless against saboteurs adequate protection. processes of the criminal law provided for the Use of Force,” the Joint Resolution “Authorization 18178_nlr_48-1-2 Sheet No. 36 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 36 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 37 Side A 04/27/2004 12:08:32 67 unmis- and , 157 L. Ed. 2d The court . . . 133 clearly Endo 134 petition for cert. granted 135 THE JOSE PADILLA STORY JOSE PADILLA THE , 323 U.S. 283, 300 (1944) (emphasis supplied). , 352 F.3d at 723. , 352 F.3d 695 (2nd Cir. 2003), The plain language of the Joint Resolution contains noth- The plain language cap- detention of American citizens ing authorizing the States soil, much less the express tured on United and the “clear” authorization required by section 4001(a) by and “unmistakable” language required the language of the [T]here is no reason to suspect from it would be au- Joint Resolution that Congress believed citizen already thorizing the detention of an American and not “arrayed held in a federal correctional institution against our troops” in the field of battle. Ex parte Endo Rumsfeld Rumsfeld indicated by the language they used.” indicated by 133. 134. 135. M K takably certiorari, and will hear oral argu- The Supreme Court has granted ments at the end of April, 2004. 2003] authority provided the 11 attacks, after the September acted shortly in Mr. Pa- someone Act to detain by the Non-Detention required dilla’s circumstances. the Joint Resolution court concluded The provide that authority.did not no Resolution contains First, the by the as contemplated detention, specifically authorizing language the Non-Detention Act.Congress enacting Second, the Supreme measures, that even in interpreting war-time Court has cautioned in a grant of when asked to find implied powers “[w]e must assume, intended to authority, that the law makers legislative or executive restraint on the citizen than was place no greater \\server05\productn\N\NLR\48-1-2\NLR211.txt unknown Seq: 29 16-APR-04 9:14 1226 (U.S. Feb. 20, 2004) (No. 03-1027). concluded: C Y 18178_nlr_48-1-2 Sheet No. 37 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 37 Side Sheet 18178_nlr_48-1-2