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NEW YORK — Federal appeals courts in California and New York dealt the Bush administration a pair of stinging rebukes Thursday, challenging the president’s right to designate American citizens as enemy combatants and the government’s right to hold detainees in Guantanamo Bay without access to the courts. In California, the Ninth Circuit U.S. Court of Appeals ruled 2-1 that the more than 600 detainees at a military base in Guantanamo Bay, Cuba, are within the territorial jurisdiction of the United States, and therefore a California district court has jurisdiction to hear a petition for a writ of habeas corpus filed by a relative of one of the detainees. In New York, a divided Second Circuit U.S. Court of Appeals ordered the release of alleged al-Qaida associate Jose Padilla, who had been held in a naval brig in South Carolina since President Bush ordered his transfer from civilian custody in 2002. The three-member panel said the president does not have the power to detain as an enemy combatant an American citizen seized on U.S. soil outside the zone of combat. The Ninth Circuit decision in Gherebi v. Bush, 03-55785, focused on the question of whether the U.S. military base in Guantanamo Bay was part of the territorial sovereignty of the United States. While the court said it was limiting its consideration of the case to that issue, it had harsh words for the Bush administration. In an opinion authored by Judge Stephen Reinhardt, the court said the U.S. policy on detainees ran contrary to the country’s historical role as a leader in the recognition of human rights and due process. “[E]ven 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,” Reinhardt wrote. “Here, we simply cannot accept the government’s position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement,” Reinhardt wrote. “We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure, ” the court said. “ In our view, the government’s position is inconsistent with fundamental tenets of American jurisprudence and raises most serious concerns under international law.” Reinhardt was joined by Judge Milton Shadur of the Northern District of Illinois, sitting by designation. Judge Susan Graber dissented. Last month, the U.S. Supreme Court agreed to decide whether the detainees, picked up in Afghanistan and Pakistan, should have access to the courts. The justices agreed to hear that case after the D.C. Circuit U.S. Court of Appeals ruled that the prisoners had no right to the American legal system. For its part, the Second Circuit — in a ruling that is headed for the U.S. Supreme Court — said the president does not have the inherent authority under Article II of the U.S. Constitution to detain a combatant in this country, nor does he have the required approval of Congress. And Congress’ broad grant of authority to the president to use military force in the wake of the Sept. 11, 2001, terror attacks “is not such an authorization,” the court said. A White House spokesman said the ruling was “troubling and flawed,” and added that the president had directed the U.S. Department of Justice to seek a stay and further judicial review. A two-judge Second Circuit majority of Rosemary Pooler and Barrington Parker Jr. issued their ruling at what is lightning speed for a federal appeals court, one month to the day since Padilla’s attorneys delivered passionate arguments for his release before a packed crowd in the ceremonial courtroom at 500 Pearl St. “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-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation,” Judge Pooler wrote. “But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the President is obligated, in the circumstances here, to share them with Congress.” In dissent, Judge Richard Wesley said the president had the power to order the detention and interrogation of Padilla. “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,” Wesley said. The Padilla defense team of Donna Newman and Andrew Patel were elated by Thursday’s decision, with Patel saying he fully expects the final chapter in the case to be written by the U.S. Supreme Court. The case of Padilla v. Rumsfeld, 03-2235, came to the Second Circuit from Southern District of New York Chief Judge Michael Mukasey, who had disappointed the Padilla legal team by ruling that the president had the authority to designate enemy combatants, and that Padilla did not have a Sixth Amendment right to counsel. But Judge Mukasey also ruled that the government had to present “some evidence” in support of the detention. Over the objection of Deputy Solicitor General Paul Clement, Judge Mukasey said the only way he could effectively review Padilla’s petition for a writ of habeas corpus was to allow Newman and Patel to visit him in the brig. Padilla was first arrested May 8, 2002, at O’Hare International Airport in Chicago after returning from Pakistan. Authorities said they had information he had met with al-Qaida operatives and was intent on pursuing a plan to obtain and detonate a radiation dispersal device, or “dirty bomb,” in the United States. The appeals court’s opinion Thursday also rejected another government challenge to the jurisdiction of Judge Mukasey. Clement had argued that the case should be transferred because the proper respondent for the habeas petition was not Secretary of Defense Donald Rumsfeld, but the commander of the brig in Charleston, S.C. Newman and Patel opposed this argument not only on the practical grounds of convenience, but also from the tactical perspective of avoiding a showdown before a Fourth Circuit U.S. Court of Appeals — a court they believed was much more likely to side with the president. Judge Pooler challenged President Bush’s finding that Padilla had to be held in military custody because he posed a continuing threat to United States security. She said that “any immediate threat he posed to national security had been effectively neutralized” when he was arrested as witness for the grand jury. As to the central issue, Judge Pooler said the president “lacks inherent constitutional authority to detain American citizens on American soil outside the zone of combat.” Judge Wesley said President Bush’s right to detain Padilla clearly fell within the authority granted him by Congress. But Judge Wesley was also troubled by what he said was the “real weakness” in the government’s appeal: the contention that “Mr. Padilla can be held incommunicado for 18 months with no serious opportunity to put the government to its proof by an appropriate standard.” Associated Press contributed to this report. Mark Hamblett is a reporter for The New York Law Journal, a Recorder affiliate.

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