Court backs Bush on detainee, Says Citizen can be held without trial

By Charlie Savage, Globe Staff | September 10, 2005

WASHINGTON -- President Bush has the power to imprison without trial a US citizen arrested on American soil, a federal appeals court ruled yesterday. The decision is likely to set up a confrontation in the Supreme Court over the balance between civil liberties and national security.

The US Court of Appeals for the Fourth Circuit, in Richmond, Va., held that Bush has the power to hold Jose Padilla, a US citizen arrested in Chicago three years ago on suspicion of plotting attacks for Al Qaeda, without trial as an ''enemy combatant." Padilla has been held without charges for three years in a South Carolina brig.

The decision extended previous court approval for Bush's authority to detain terrorism suspects outside the civilian justice system to US citizens arrested domestically. The Supreme Court ruled last year that Bush could indefinitely hold a citizen captured on a foreign battlefield, but a US District Court said in February that any citizen taken into custody in the United States must be charged or released.

''The . . . question before us is whether the president of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with Al Qaeda" and who was arrested in the United States while allegedly planning to attack American targets, J. Michael Luttig wrote for the three-judge panel.

The panel was made up of Luttig, a conservative appointed by President George H. W. Bush who is often mentioned as a possible Supreme Court nominee, and two Clinton appointees, Judges M. Blane Michael and William B. Traxler Jr. It unanimously concluded that Congress implicitly granted Bush the power to hold citizens as enemy combatants when it authorized the use of military force against the perpetrators of the attacks on Sept. 11, 2001.

Their decision relied heavily on an opinion from a fractured 5-to-4 Supreme Court ruling in June 2004, which held that Bush was authorized to detain Yaser Hamdi -- a US citizen captured on a battlefield in Afghanistan who was allegedly fighting alongside Al Qaeda and Taliban forces -- as an enemy combatant.

Writing for four justices in the majority, Justice Sandra Day O'Connor held that the power to use force includes the power to capture enemy fighters and to hold them for the entire conflict.

Hamdi's US citizenship, she wrote, was irrelevant, as long as he had a fair chance to challenge whether he meets the criteria for being an enemy combatant.

Padilla's lawyers had argued that their client's case was different because he was arrested on US soil. When Congress authorized the invasion of Afghanistan, they said, it did not contemplate whether to give Bush the power to imprison US citizens and to hold them without charges.

In February, Judge Henry Floyd, whom Bush named to the district court in 2003, held that the president lacked the authority to hold Padilla as an enemy combatant, because Congress would have to pass a law laying out such a change to the US justice system. He ordered the government to charge Padilla with a crime or to release him.

''Simply stated, this is a law enforcement matter, not a military matter," Floyd wrote.

But the appeals court said the Supreme Court in the Hamdi case had imposed no restriction on Bush's authority to hold a citizen as an enemy combatant based upon where the capture had taken place. All that matters, Luttig wrote, is the need to prevent an Al Qaeda suspect from returning to the fight.

''Padilla poses the same threat of returning to the battlefield as Hamdi posed," Luttig wrote.

The decision drew praise from Attorney General Alberto Gonzales.

''As the court noted today, the authority to detain enemy combatants like Jose Padilla plays an important role in protecting American citizens from the very kind of savage attack that took place almost four years ago to the day," Gonzales said.

The American Civil Liberties Union expressed disappointment with the ruling.

''There is very little reason to believe that Congress either anticipated or endorsed the military detention of US citizens arrested in the United States when it authorized a military strike against Afghanistan following 9/11," said the ACLU's legal director, Steven R. Shapiro.

Still, the court's ruling was narrower than the Bush administration had wanted. Lawyers for the government had argued that the Constitution gives the commander in chief the power to hold anyone as an enemy combatant even without congressional authorization.

Padilla is a former gang member who converted to Islam and moved to the Middle East in the 1990s. The government says he received explosives training from Al Qaeda and, after the 2001 terrorist attacks, told Al Qaeda leaders that he was willing to return to the United States and blow up buildings. Padilla's lawyers, have denied the accusations and said their client deserves a trial.

US authorities arrested Padilla at O'Hare International Airport in Chicago on May 8, 2002, after he stepped off a plane from Pakistan. On June 9, 2002, Bush declared him an enemy combatant.

Padilla's lawyers had challenged Bush's power to hold him without trial, and the US Court of Appeals for the Second Circuit, in New York, had ruled in his favor. But in June 2004, the Supreme Court ruled that his suit should have been filed in South Carolina, not New York. The process began anew, in a different court.

The Fourth Circuit ruling yesterday set the stage for the case to return to the high court on appeal. But with the death of Chief Justice William H. Rehnquist and the impending retirement of O'Connor, analysts said it was difficult to predict how the court might rule.

''I think given the personnel turbulence on the Supreme Court right now, as well as the less-than-clear road map the court gave us in 2004, it's a whole new ballgame," said Eugene Fidell, president of the National Institute of Military Justice.