The case is the latest example of tension between the administration and the courts over how far and how fast the government can press its attack on democratic rights under the cover of fighting its “war on terrorism.” In a related matter the Supreme Court announced days earlier, over the objection of the Bush administration, that it would hear an appeal on behalf of citizens of other countries being detained under similar status at the U.S. prison camp in Guantánamo, Cuba.

The case before the appeals court involves José Padilla, also known as Abdullah al-Muhajir, a U.S. citizen who was arrested in May 2002 at Chicago’s O’Hare International Airport when he arrived there traveling from Pakistan. He was taken to New York for arraignment and given a court appointed attorney. Two days before a judge was to hear a challenge to Padilla’s detention, however, the Bush administration declared him an “enemy combatant” and transferred Padilla to a Navy brig in South Carolina. Padilla has been held incommunicado there for 18 months without charges or access to his attorneys or family members.

Government attorneys argued that military principles, not the usual rules of a criminal court, must be applied in Padilla’s case because of the “war on terrorism.” Deputy Solicitor General Paul Clement said that the president as commander in chief has the power to detain military enemies.

The government bases that argument on the 1942 case of eight men who had all once lived in the United States but who were trained to use explosives in Berlin. The group was set ashore in two teams by a German submarine along the Florida coast. Following their capture, Washington feared that the men might not be convicted in a civilian court because they had not committed a crime. President Franklin Delano Roosevelt decreed the eight must be tried by a military commission. All of the men were convicted and six were executed.

In a court room just blocks from the former site of the World Trade Center, government attorneys evoked scenes of the Sept. 11, 2001, attacks saying “al-Qaeda had made the battlefields of the United States.” In response, Judge Rosemary Pooler hinted at the dispute among the rulers over which branch of government has the authority to declare war, when she said, “If in fact, the battlefield is the United States, I think Congress has to say that, and I don’t think they have yet.

“As terrible as 9/11 was,” she continued, “it didn’t repeal the Constitution.”

Judge Barrington Parker added: “Were we to construe the Constitution as permitting this kind of power in the executive with only modest judicial review, we would be effecting a sea change in the constitutional life of this country and making changes that would be unprecedented in civilized society.” Parker described the ease with which government attorneys transposed military rules into the civilian sphere as “troubling.”

A third judge on the panel, Richard Wesley, was more sympathetic to the government’s case but noted that the Patriot Act of 2001 placed strict limits on how long the government may detain a non-citizen without charges. He questioned why a citizen would be treated any differently.

Attorneys for Padilla called the government’s action unprecedented. “Under this theory,” said attorney Jenny Martinez, “the government could do this to anyone at any time. They can pick up any person off the street and so long as the president turns in a piece of paper that says that that person is associated with al-Qaeda, that person has no rights and the courts are powerless to intervene.”

The designation of Padilla as an enemy combatant is based on information from two individuals who claim he met with leaders of al-Qaeda and discussed plans to detonate a radiological bomb in the United States. The device, dubbed a “dirty bomb,” uses conventional explosives to disperse low grade radioactive material. Padilla’s attorneys said that one of the individuals has since recanted his accusations and the other has a reputation of providing false information.

In addition to Padilla, Ali Saleh Kahlah al-Marri, a citizen of Qatar, and Esam Hamdi from Louisiana have also been designated “enemy combatants” and are being held under similar conditions. Al-Marri is accused of being an al-Qaeda “sleeper agent.” Hamdi was captured during fighting in Afghanistan. His appeal, which was denied by judges from the Fourth Circuit Court of Appeals, is now before the Supreme Court.  
 
 
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