From the Padilla Decision
This habeas corpus appeal requires us to consider a series of questions
raised by Secretary of Defense Donald Rumsfeld and by Donna R. Newman on
behalf of Jose Padilla, an American citizen held by military authorities as
an enemy combatant. Padilla is suspected of being associated with al Qaeda
and planning terrorist attacks in this country. The questions were certified
by the United States District Court for the Southern District of New York
and involve, among others: whether the secretary of defense is Padilla's
"custodian" for habeas purposes, whether the southern district of New York
had jurisdiction over the petition, and whether the president has the
authority to detain Padilla as an enemy combatant. We conclude that the
secretary of defense is a proper respondent and that the district court had
jurisdiction. We also conclude that Padilla's detention was not authorized
by Congress, and absent such authorization, the President does not have the
power under Article II of the Constitution to detain as an enemy combatant
an American citizen seized on American soil outside a zone of combat.
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. 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 presented here, to share them with
Congress.
Where, as here, the president's power as commander in chief of the armed
forces and the domestic rule of law intersect, we conclude that clear
congressional authorization is required for detentions of American citizens
on American soil because the "Nondetention Act" prohibits such detentions
absent specific congressional authorization. Congress's Authorization for
Use of Military Force Joint Resolution passed shortly after the attacks of
Sept. 11, 2001, is not such an authorization.
From the Gherebi Decision
This case presents the question whether the executive branch may hold
uncharged citizens of foreign nations in indefinite detention in territory
under the "complete jurisdiction and control" of the United States while
effectively denying them the right to challenge their detention in any
tribunal anywhere, including the courts of the U.S. The issues we are
required to confront are new, important, and difficult. . . .
In his February 2003 amended petition, Gherebi alleged violations of the
U.S. Constitution and the Third Geneva Convention arising out of his
involuntary detention at Guantánamo, a naval base "under the exclusive and
complete jurisdiction of the respondents," and he further claimed that,
"Respondents have characterized Gherebi as an `unlawful combatant, and have
denied him status as a prisoner of war, have denied him rights under the
United States Constitution, have denied him access to the United States
courts," and have denied him access to legal counsel. The government did not
respond. Thereafter, Gherebi urged this court to resolve the "threshhold
question" of federal subject matter jurisdiction in a motion to grant his
petition summarily. At that point, the government moved to dismiss Gherebi's
petition without prejudice to its being re-filed in the district court, or
alternatively, to transfer it to the district court so that the district
judge could decide the question of jurisdiction. A motions panel of this
Court granted the government's request, transferring Gherebi's petition to
the United States District Court for the Central District of California.
After additional motions were filed with the district court urging summary
disposition of the jurisdictional question, that court issued a reasoned
order on May 13, 2003 dismissing Gherebi's petition for lack of
jurisdiction. The court held that Johnson v. Eisentrager controlled and
foreclosed jurisdiction over Gherebi's petition in any federal court because
Guantanamo "is not within sovereign U.S. territory." In so holding, the
court described its conclusion as "reluctant" and expressed hope that "a
higher court would find a principled way" to provide the remedy of habeas
corpus. . . .
We recognize that the process due "enemy combatant" habeas petitioners may
vary with the circumstances and are fully aware of the unprecedented
challenges that affect the United States' national security interests today,
and we share the desire of all Americans to ensure that the executive enjoys
the necessary power and flexibility to prevent future terrorist attacks.
However, even 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.
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. We hold that no lawful policy or
precedent supports such a counter-intuitive and undemocratic procedure, and
that, contrary to the government's contention, Johnson neither requires nor
authorizes it. In our view, the government's position is inconsistent with
fundamental tenets of American jurisprudence and raises most serious
concerns under international law.