The rulings reflect the tensions and divisions in the U.S. ruling class over the pace and extent to which it can undermine democratic rights using the rationalization that it is pursuing the “war on terrorism.”

At issue is whether the president has the authority, in the first case, to detain citizens arrested on U.S. soil and, in the second, foreign nationals captured in Afghanistan, and hold them indefinitely without charges. Attorneys for the administration of U.S. president George Bush argued that the president is granted that authority under Article II of the Constitution, which outlines the powers of the president, and through his powers as commander in chief of the armed forces.

“The President’s inherent constitutional powers do not extend to the detention as enemy combatant of American citizens without express congressional authorization,” wrote the majority of a three-judge panel for the Second Circuit Court of Appeals. “Padilla will be entitled to the constitutional protections extended to other citizens.”

José Padilla, a U.S. citizen who is also known as Abdullah al-Muhajir, was arrested in May 2002 at Chicago’s O’Hare International Airport as he arrived from Pakistan. He was taken to New York as a material witness in the Sept. 11, 2001, attacks on the World Trade Center and Pentagon. Two days before a judge was to hear a challenge to Padilla’s detention, the Bush administration declared him an “enemy combatant” and transferred him to a Navy brig in South Carolina. Padilla has been held there incommunicado for 18 months without charges or access to his attorneys or family.

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. According to Padilla’s attorneys, one of the individuals has since recanted his accusations. The other, they say, has a reputation for providing false information.

The latest ruling gives the government 30 days in which to release Padilla from military custody, or take another course. The court offered the government the options of transferring Padilla to a civilian authority that can bring criminal charges against him, or to have him held as a material witness in grand jury proceedings. In response, Justice Department spokesperson Mark Corallo said curtly, “We are reviewing the opinion.”

The appeal on Padilla’s behalf was backed by the American Bar Association and the Lawyers Committee for Human Rights.

In a second ruling, the majority of the Ninth Circuit Court of Appeals in San Francisco went even further, writing, “We simply cannot accept the government’s position that the executive branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included…without permitting such prisoners recourse of any kind to any judicial forum.”

The appeal was filed by attorneys for a Libyan national who is being held at Guantánamo with the more than 600 others, who come from 40 different countries .

The Pentagon has appointed military defense attorneys for two of the detainees, Salim Ahmed Hamden of Yemen and David Hicks of Australia. Both men are among a group of six who have been chosen by President Bush to face special military tribunals. Only two of the 20 lawyers who have applied to represent the detainees have been approved for the job by the Pentagon.

The December 3 London Guardian reported that the first team of military defense lawyers assigned to defend the detainees was dismissed by the Pentagon the same day it reported for duty. When the attorneys complained that the rules of the tribunals would make it impossible to properly represent their clients they were told to leave. The rules would allow, among other things, for the government to listen in on any conversations between attorney and client. Major John Smith of the Pentagon’s Office of Military Commissions called the Guardian’s report “not true.”  
 
 
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