Judge Says Terror Suspect Can't Be Held as an Enemy Combatant By NEIL A. LEWIS March 1, 2005 WASHINGTON, Feb. 28 - A federal district judge in South Carolina ruled Monday that President Bush had greatly overstepped his authority by detaining an American citizen as an enemy combatant for nearly three years without filing criminal charges. The judge, Henry F. Floyd, ruled that the government must release the American, Jose Padilla, within 45 days from the military brig in Charleston, S.C., where he has been held since June 2002. That left the Bush administration time to appeal, and a Justice Department spokesman, John Nowacki, said officials immediately decided to do so. In his opinion, Judge Floyd sharply criticized the administration's use of the enemy combatant designation in Mr. Padilla's case. "The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant," Judge Floyd wrote. The judge said he had no choice but to reject the president's claim that he had the power to detain Mr. Padilla, who was arrested in May 2002 at O'Hare International Airport in Chicago and was later accused of having planned to detonate a radiation-spewing "dirty bomb" in the United States as part of a plot by Al Qaeda. "To do otherwise would not only offend the rule of law and violate this country's constitutional tradition," Judge Floyd wrote, "but it would also be a betrayal of this nation's commitment to the separation of powers that safeguards our democratic values and individual liberties." Judge Floyd, who was nominated to the court by President Bush in May 2003, said that to agree with the president would "be to engage in judicial activism," a phrase often used by the White House to criticize rulings with which it disagrees. Although Judge Floyd's opinion was notable for its sweeping language, its substance was not a surprise because it reflected a Supreme Court ruling last June in a related case involving Yaser Esam Hamdi. Mr. Hamdi, a Saudi who was an American citizen by virtue of his birth in the United States, was arrested on the battlefield in Afghanistan and held as an enemy combatant in the same brig in Charleston. The justices ruled that Mr. Hamdi was entitled to have his case heard in court, saying "a state of war is not a blank check for the president." But they declined to rule on the Padilla case at the same time, saying his lawyers had wrongly filed their claims in New York instead of South Carolina, where Mr. Padilla was being held. Judge Floyd noted, as had many analysts, that Mr. Padilla's case was the stronger of the two because he was arrested on United States soil. "The differences between the two are striking," Judge Floyd wrote. Although the government might well argue that the use of force was needed to capture Mr. Hamdi on the battlefield and prevent attacks by Al Qaeda, the same argument may not be used in the case of Mr. Padilla, who was "arrested in a civilian setting such as a United States airport." Mr. Padilla's "alleged terrorist plans were thwarted at the time of his arrest," the judge wrote, adding, "There were no impediments whatsoever to the government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing." If the government loses on appeal, it would have to release Mr. Padilla or charge him with criminal acts. In the case of Mr. Hamdi, when the administration lost the case, officials surprised many people by simply releasing him to Saudi Arabia rather than filing criminal charges even though it had deemed him so dangerous he was held incommunicado for more than two years. In Mr. Padilla's case, the Justice Department argued that Mr. Bush had the authority to detain him on several grounds, including the resolution Congress passed after the Sept. 11 attacks that authorized the president to use all necessary force to prevent a repetition, as well as his inherent authority as commander in chief of the military. But Judge Floyd said that "simply stated this is a law enforcement matter, not a military matter." The ruling fits a larger pattern of the administration's winning most of its early legal battles concerning detention policies and suffering defeats in more recent months. However, Neal Katyal, a professor at Georgetown University's law school who has sided against the government on the detention issues, said: "The decision is sweeping, probably too sweeping. By shackling the president's power to detain enemy combatants, it does give rise to the fear that courts may micromanage the president's war-fighting capacity." But he added that the ruling reveals how the executive branch "is overplaying its hand by claiming that it is above the law and courts cannot review government activity in the war on terror." Copyright 2005 The New York Times Company ---------------------------------------------------- Bomb Plot Suspect Must Be Charged or Freed By JACOB JORDAN Mar 1, 6:20 AM (ET) COLUMBIA, S.C. (AP) - In a stinging rebuke to the Bush administration, a federal judge ruled the case of "dirty bomb" suspect Jose Padilla is a matter for law enforcement - not the military - and ordered the government to charge him or let him go. Padilla's more than 2 1/2 years in custody, most of it spent in a Navy brig, don't seem closer to an end, however, because Justice Department spokesman John Nowacki said the government will appeal the ruling. U.S. District Judge Henry Floyd in Spartanburg, S.C., ruled Monday that the government can not hold Padilla indefinitely as an "enemy combatant," a designation President Bush gave him in 2002. The government views Padilla as a militant who planned attacks on the United States, including with a "dirty bomb" radiological device. Floyd wrote in his 23-page opinion that to rule in favor of the government "would not only offend the rule of law and violate this country's constitutional tradition," it would be a "betrayal of this nation's commitment to the separation of powers that safeguards our democratic values and individual liberties." Floyd, appointed by Bush in 2003, gave the administration 45 days to take action. Padilla's attorney, Andy Patel, said his client is an American citizen who has the right to defend himself in court against charges or else be released. "The real issue in this case is Mr. Padilla's right to have that jury," he said. "That's not just Mr. Padilla's right, that's every American citizen's right." Michael Ratner, president of the Center for Constitutional Rights, called Floyd's order a significant blow to the administration. "It's a genuine limitation on the president's belief that he can do what he wants in the war on terror," said Ratner, whose group represents scores of detainees at the U.S. naval base at Guantanamo Bay, Cuba. The administration has said Padilla, a former Chicago gang member, sought to blow up hotels and apartment buildings in the United States in addition to planning an attack with a radiological device. Padilla was arrested at Chicago's O'Hare International Airport in 2002 after returning from Pakistan. The federal government has said he received weapons and explosives training from members of al-Qaida. Deputy Attorney General James Comey last year used a news conference to detail claims against Padilla. Comey asserted that if Padilla had been handled by the usual criminal justice system, he could have stayed silent and "would likely have ended up a free man." During court arguments last month, his attorneys challenged the government to prove its case or release Padilla. "If everything you say about Jose Padilla is true, prove it," said Denyse Williams, executive director of the American Civil Liberties Union in South Carolina, which filed a brief in support of Padilla's attorneys. "Everybody says the war on terror could last a lifetime. If they can do it to him, they can do it to others." David Salmons from the U.S. Solicitor General's Office countered at the time that the president has the right to detain any enemy combatant while the United States is fighting al-Qaida. But he added that there's no risk the president may round up citizens and detain them. Padilla, a New York-born convert to Islam, is one of only two U.S. citizens designated as enemy combatants. The second, Louisiana native Yaser Hamdi, was released in October after the Justice Department said he no longer posed a threat to the United States and no longer had any intelligence value. Hamdi, who was captured on the battlefield in Afghanistan in 2001, gave up his American citizenship and returned to his family in Saudi Arabia as a condition of his release. Despite the legal win, Patel was not ready to celebrate yet. "When my client can join the party, we can all celebrate," he said. "And when I say join the party, that means whether he goes home to his family or when he gets his day in court, then we can all celebrate." --- Associated Press Writer Jacob Jordan in Columbia, S.C., contributed to this story.