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The Bush administration was dealt a pair of stinging rebukes Thursday as federal appeals courts in New York and California challenged 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 New York, a divided 2nd U.S. Circuit 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 George W. 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. In California, the 9th Circuit 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. The 2nd 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 2nd Circuit majority of Rosemary Pooler and Barrington D. Parker Jr. issued their ruling at what is lightening 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 Street in Manhattan. “As this Court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the President and law enforcement officials bear for protecting the nation,” 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 C. 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. “It is really important that the court has indicated it is willing to affirm the basic structure of the government, a three-part government with all three parts playing a role,” Patel said Thursday. “It has been true for over 200 years that it is the courts’ role to determine what the President’s authority is here.” The case of Padilla v. Rumsfeld, 03-2235, came to the 2nd Circuit from Southern District of New York Chief Judge Michael B. 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 Mukasey also ruled that the government had to present “some evidence” in support of the detention. Over the objection of Deputy Solicitor General Paul D. Clement, 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. Clement argued that allowing access to counsel would interrupt and undermine the interrogation of Padilla as the government fights to learn more about the operations of the Osama bin Laden-led terror group al-Qaida. Judge Mukasey also said Padilla could “present facts” to rebut the government’s evidence, and could consult with counsel “under the conditions that will minimize the likelihood that he [could] use his lawyers as unwilling intermediaries for the transmission of information to others.” The government dug in its heels, saying there were no conditions under which Padilla could meet with Newman that would not jeopardize national security. Clement then turned to the 2nd Circuit. But the circuit leapfrogged the debate over attorney access by focusing foremost on the president’s authority to designate enemy combatants in these circumstances. Padilla, Judge Pooler said, must be released from military custody within 30 days. If the government wants to keep him in custody, they must either hold him as a material witness or allow him to be “transferred to the appropriate civilian authorities who can bring criminal charges against him.” “In any case, Padilla will be entitled to the constitutional protections extended to other citizens,” she said. 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. Newman, who had represented Padilla since he arrived in New York as a detained material witness, has been denied access to her client since he was sent to what she called “the black hole” of a military facility. She filed his petition for a writ of habeas corpus as a “next friend” of Padilla, a status that the government has contested without success before both Judge Mukasey, and now the 2nd Circuit. The appeals court’s opinion also rejected another government challenge to the jurisdiction of 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 4th Circuit — a court they believed was much more likely to side with the president. While the 4th Circuit had already upheld the detention of another U.S. citizen as an enemy combatant in Hamdi v. Rumsfeld, it said comparing the two cases was like comparing “apples and oranges” because Hamdi was captured on the battlefield. Judge Pooler on Thursday 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, Pooler said the president “lacks inherent constitutional authority to detain American citizens on American soil outside the zone of combat.” Moreover, she said, the Non-Detention Act, 18 U.S.C. � 4001(a), which states that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress” amounts to an “explicit” denial of authority by Congress. Accepting the “government’s underlying assumption that an undeclared war exists between Al Qaeda and the United States,” Pooler said, “it is a different proposition entirely to argue that the President even in times of grave national security threats or war, whether declared or undeclared, can lay claim to powers, express or implied, allocated to Congress.” The government had argued that the president’s inherent authority in this area was outlined by the Supreme Court in Ex Parte Quirin, 317 U.S. 1 (1942), where German saboteurs, one of whom claimed American citizenship, were captured on U.S. soil. But Judge Pooler said Quirin did not control here because the case did not “speak to whether, or to what degree, the President may impose military authority upon United States citizens domestically without clear congressional authorization.” And if the president believes his current power to keep Padilla off the streets is insufficient, Pooler said, “he can ask Congress — which has shown its responsiveness — to authorize additional powers.” DISSENTING OPINION In his dissent, Judge Wesley said he would have upheld Mukasey’s opinion and could not see “how the Non-Detention Act precludes an affirmance.” Wesley said President Bush’s authority to detain Padilla clearly fell with the Joint Resolution passed by Congress after Sept. 11, 2001, and citing Quirin, he said the president’s authority to “detain an enemy combatant in wartime is undiminished by the individual’s U.S. citizenship.” But 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.” And he addressed the government’s concerns about the interrogation of Padilla and his ability to communicate with al-Qaida, saying he agreed with Judge Mukasey that access to counsel was critical. “While those concerns may be valid, they cannot withstand the force of another clause of the Constitution on which all of us could surely agree,” Judge Wesley said. “No one has suspended the Great Writ.” 9TH CIRCUIT RULING The 9th Circuit decision Thursday 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, saying the U.S. policy on detainees ran contrary to its 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,” the court said. “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,” Judge Stephen Reinhardt wrote for the court. “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.” Judge Reinhardt was joined by Milton I. Shadur of the Northern District of Illinois, sitting by designation. Judge Susan P. 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 U.S. Court of Appeals for the D.C. Circuit ruled that the prisoners had no right to the American legal system. The Associated Press contributed to this report.

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