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U.S. Must Charge Padilla With Crime or Release Him

By R. Jeffrey Smith
Washington Post Staff Writer
Tuesday, March 1, 2005; Page A02

A federal judge in South Carolina ruled yesterday that the Bush administration lacks statutory and constitutional authority to indefinitely imprison without criminal charges a U.S. citizen who was designated an "enemy combatant."

Rejecting a series of arguments put forward by the government, District Court Judge Henry F. Floyd said the indefinite detention of Jose Padilla -- who the administration has said is a terrorist supporter of al Qaeda -- is illegal and that Padilla must be released from a naval brig in Charleston, S.C., within 45 days or charged with a crime.

In a strongly worded 23-page ruling, Floyd said "to do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and our individual liberties."

Floyd said he was not persuaded by key arguments put forward by the administration to justify its assertion that foreigners and Americans alike who are designated "enemy combatants" by the president can be detained without trial or some other form of judicial review.

Using a phrase often levied by conservatives to denigrate liberal judges, Floyd -- who was appointed by President Bush to the federal bench in 2003 -- accused the administration of engaging in "judicial activism" when it asserted in court pleadings that Bush has blanket authority under the Constitution to detain Americans on U.S. soil who are suspected of taking or planning actions against the country.

Floyd said the government presented no law supporting this contention and that just because Bush and his appointees say Padilla's detention was consistent with U.S. laws and the president's war powers, that did not make it so. "Moreover, such a statement is deeply troubling. If such a position were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenry's individual liberties."

This is the second time the government's handling of Padilla has been repudiated in federal court. In December 2003, a federal appeals court in New York also held that Bush lacked authority to hold Padilla in a military brig and ordered him released. But the Justice Department appealed the decision, and the Supreme Court ruled in June 2004 that Padilla's petition for release should have been processed in federal court in South Carolina, not New York.

The decision yesterday, which the government has vowed to appeal, was the shoe that dropped again. One of Padilla's attorneys, Donna Newman, said the "court ruled that the president does not have the power to seize an American citizen on American soil and hold him indefinitely without a charge. That shouldn't be big news, but it is. . . . It confirms our belief that the Constitution is alive and well and kicking. The system works."

Padilla, 34, was monitored by the FBI on a flight from Pakistan to Chicago's O'Hare airport in May 2002 and arrested on a warrant describing him as a material witness to an ongoing terrorism investigation. After being questioned by investigators in New York and demanding a lawyer, he was officially designated by Bush as an enemy combatant and taken to the brig, where he has been for the past 32 months.

U.S. officials contended that Padilla was scouting sites to detonate a bomb that would release radioactive particles; they also said he had met with senior al Qaeda officials and would pose a grave threat to the country if released. Floyd's ruling did not address the merits of these assertions; it merely concluded that the government faced "no impediments whatsoever" to trying Padilla on these charges in a civilian court.

In seeking to avoid that course, the Justice Department cited a June 2004 ruling by the Supreme Court upholding the military's detention of another designated enemy combatant, Yaser Esam Hamdi. But Floyd said the two cases were distinct, because Hamdi was arrested in Afghanistan while carrying a weapon and Padilla was captured on U.S. soil in civilian garb.

A government assertion that Padilla was not "in" the United States because he was arrested at an airport was fatally flawed, Floyd said. He also dismissed an administration contention that Padilla's circumstances were akin to the capture and detention of German saboteurs -- including at least one U.S. citizen -- on U.S. soil in World War II.

A Supreme Court decision in that case, Floyd said, involved whether they would be tried in a military or civilian court; the Padilla case "is concerned with whether [he] . . . is going to be charged and tried at all."

Staff writer Michael Powell and researcher Julie Tate contributed to this report.

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