The United States Court of Appeals for the Second Circuit's decision last week in Padilla v. Rumsfeld is one of two recent court of appeals1 decisions that suggest that the rule of law is slowly reasserting itself in the United States. In Padilla, the Second Circuit essentially decided that the Executive Branch has no "inherent power" to detain U.S. citizens arbitrarily and without statutory authorisation.

José Padilla, a United States citizen, was arrested as a material witness upon arriving at Chicago O'Hare Airport on 8 May 2002. At that time, counselattorney Donna Newman — was appointed for him. She conferred with him over several weeks, and attempted to secure his release through discussions with government officials and in court. Newman eventually filed a motion to vacate the material witness warrant pursuant to which Padilla was being held in custody. Shortly before a hearing on Newman's motion was to be held, the government approached the presiding judge ex parte (i.e. in Newman's and Padilla's absence), and announced that they wished to withdraw the subpoena against Padilla, and that George W. Bush had ordered Padilla taken into military custody as a so-called "enemy combatant."

The term "enemy combatant," like its Guantánamo-based cousin "unlawful combatant," has no legal meaning2. It is, in essence, a status invented and defined by executive fiat. There is no legal standard for determining whether a U.S. citizen is an "enemy combatant," and the government has steadfastly maintained — with little disagreement from the courts — that no court may examine whether there is any basis whatsoever for declaring a person an "enemy combatant." The powers the executive claims to have over an "enemy combatant" are virtually unlimited. Based on the government's behaviour in known "enemy combatant" cases, the government may spirit alleged "enemy combatants" off to military prisons (all of which are conveniently located in the ultra-right Fourth Circuit), where they are held incommunicado, without access to counsel, without an opportunity to challenge the government's assertion that they are "enemy combatants" — indefinitely.

The main obstacle to this argument, which (according to the Second Circuit) proved fatal, is 18 U.S.C. § 4001(a), a statute enacted by Congress to prevent abuses, such as the concentration camps in which Japanese-Americans were kept during World War II, from recurring. This statute provides that:

(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

This brief, succinct statute means, in practise, that the federal government may not imprison or detain a U.S. citizen unless Congress has specifically enacted a law authorising imprisonment or detention of U.S. citizens.

The Chief Judge of the U.S. District Court for the Southern District of New York, Michael Mukasey, while holding that Padilla had the right to meet with his attorney in connection with his petition for habeas corpus, found that the congressional resolution authorising the use of force3 constituted congressional authorisation to take "enemy combatants" (i.e. anybody on Earth) into custody indefinitely, as long as there was "some evidence" to support the allegation.

Both Padilla and the government filed interlocutory appeals — appeals filed before the case has reached a final decision at the trial level —, and the District Court submitted the following issues to the Second Circuit Court of Appeals:

(1) Is the Secretary of Defense, Donald Rumsfeld, a proper respondent in this case?
(2) Does this court have personal jurisdiction over Secretary Rumsfeld?
(3) Does the President have the authority to designate as an enemy combatant an American citizen captured within the United States, and, through the Secretary of Defense, to detain him for the duration of armed conflict with al Qaeda?
(4) What burden must the government meet to detain petitioner as an enemy combatant?
(5) Does petitioner have the right to present facts in support of his habeas corpus petition?
(6) Was it a proper exercise of this court’s discretion and its authority under the All Writs Act to direct that petitioner be afforded access to counsel for the purpose of presenting facts in support of his petition?

Padilla ex rel. Newman v. Rumsfeld, 256 F. Supp. 2d 218, 223 (S.D.N.Y. 2003).

The Second Circuit, in a 2-1 decision, had no difficulty finding that Donald Rumsfeld was a proper respondent in Padilla's case, and that the Southern District of New York had personal jurisdiction over Rumsfeld. It saw no need, however, to address the question of the evidence necessary for the government to detain Padilla as an "enemy combatant," whether Padilla had the right to present facts in support of his petition for habeas corpus, and whether Padilla had the right to meet with counsel, because the government had no authority to hold Padilla as an "enemy combatant" in the first place.

Ultimately, the Padilla case revolves around the doctrine of separation of powers: what powers does the executive enjoy when claiming to act in the name of "national security," and what powers exclusively inhere in the legislative branch? The government argued that the power to detain citizens indefinitely, without charge, judicial review, access to counsel, or contact with the outside world for any reason or no reason at all was included within the powers of the president as Commander-in-Chief. "This power [...] may be exercised without a formal declaration of war by Congress and “even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, . . . engages the President’s full powers as Commander in Chief.” 2. Cir. op at 24 (quoting Padilla I, 233 F. Supp. 2d at 590.). Padilla argued that the power to create the status of "enemy combatant" and to determine what legal consequences flow from that status was a classic legislative function that could not be exercised by the executive in the absence of congressional authorisation; the Joint Resolution authorising the use of force "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons," Joint Resolution § 2(a), was not a specific statutory authorisation to detain U.S. citizens as required by 18 U.S.C. § 4001(a).

In order to resolve this question, the Second Circuit reached back to a constitutional law classic: Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579. Youngstown concerned the president's domestic war powers: whether the president, in wartime, could nationalise vital industries without congressional authorisation in order to ensure that war production needs were met. In holding that the president had no power to do so, the Supreme Court developed the following standard: (1) When acting with express or implied congressional authorisation, presidential "authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring); (2) when Congress has taken no clear position on the action contemplated by the executive, the president "can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Youngstown, 343 U.S. at 637; (3) when, however, Congress has explicitly foreclosed the path the president wishes to take, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. The “[c]ourts can sustain exclusive presidential control [in this situation] only by disabling the Congress from acting upon the subject.” Id. at 637-38.

Each of these alternatives sets up a two-pronged test. First, a court must determine whether Congress has spoken on the matter, and, if so, whether Congress has expressly or implicitly authorised, or expressly disapproved of, the president's contemplated action. The importance of the second part of the inquiry — whether the executive has any inherent power to take the contemplated action — depends on the answer to the first question. The less Congress has tended to favour what the president wishes to do, the more essential it becomes that the executive branch can show some power derived directly from the text of the Constitution.

Unfortunately for the Bush administration, the Second Circuit's holding fit the alleged power of arbitrary detention into the third category: executive actions of which Congress has explicitly disapproved. In the court's view, Congress had made it abundantly clear in 18 U.S.C. § 4001(a) that U.S. citizens could be detained only with explicit statutory authorisation. Since Congress clearly disapproved of detaining citizens by executive fiat, the only possible support for Padilla's detention could be found — if anywhere — in the inherent powers of the executive branch.

In arguing that Padilla was detained in an exercise of the executive branch's inherent powers, the government principally relied on the Quirin case mentioned above. There, the Supreme Court had held that the president was within his power as Commander-in-Chief to detain several would-be German saboteurs4 who clandestinely entered U.S. territory during World War II, try them before military tribunals, and sentence them to death. However, as the Second Circuit noted, Quirin was not particularly good authority for the government's argument, as World War II was declared by Congress, and Congress had specifically, expressly authorised all actions — from detention to military tribunals and execution — taken against the saboteurs. Clearly, Quirin was not the best case to support the executive branch's inherent power to do the same thing in the face of a specific congressional prohibition. Nor was this the only problem. Quirin was also not much help in resolving the § 4001(a) issue, as § 4001(a) had not even been enacted at the time that Quirin was decided. Moreover, one of the most important issues in Padilla's case — whether Padilla was an "enemy combatant" at all — was not even an issue in Quirin, as the German saboteurs had already admitted to being combatants5. Based on Quirin, and other cases going back to the Civil War, the Second Circuit could simply find no support for the proposition that the executive branch had any "inherent power" to detain anyone it wants, wherever it wants, for whatever reason it wants, for whatever duration it wants, and under whatever conditions it wants.

All in all, Padilla v. Rumsfeld does not exactly stand for a bombshell proposition. Its holding only comes as a surprise because one is not accustomed to federal courts acting in accordance with the plain text of the Constitution and the laws when "national security" is at stake. As a matter of law, Padilla is a no-brainer: 18 U.S.C. § 4001(a) means what it says — i.e. that Congress must specifically authorise detentions of U.S. citizens — and that the Constitution includes no executive right of arbitrary detention at executive prerogative. The only thing truly newsworthy about Padilla is this: the courts that approved concentration camps and other forms of discrimination and repression on the flimsiest of evidence only a few decades ago are finally holding the government to its burden.




1The other, Gherebi v. Bush, was decided on the same day by the United States Court of Appeals for the Ninth Circuit.

2The government claims to find support for the status of "enemy combatant" in the U.S. Supreme Court's decision in Ex parte Quirin, 317 U.S. 1 (1942), but that decision did not purport to create a legal status of "enemy combatant" that was effectively outside the bounds of the Constitution. It merely used the phrase in passing to refer to persons belonging to a military force engaged in hostilities against the United States.

3The Resolution provides "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

4It is not generally mentioned that the would-be saboteurs were not apprehended by the government. Rather, at least two of them had been intending to defect all along, and contacted the FBI shortly after making landfall. After the FBI dismissed the call as a prank, the German saboteurs went straight to Washington, D.C., where they showed officials the substantial bankroll they were given by the German government. Only then were they sent before military tribunals and sentenced to death.

5Moreover, civilians who cooperated with the saboteurs' plot were tried and sentenced in civilian courts.

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