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.