By Tom Jackman
Washington Post Staff Writer
Wednesday, July 20, 2005
RICHMOND, July 19 -- A top government attorney declared Tuesday that, in the war on terror, the United States is a battlefield, and therefore President Bush has the authority to detain enemy combatants indefinitely in this country.
Solicitor General Paul D. Clement's comments came as a three-judge panel of the U.S. Court of Appeals for the 4th Circuit is considering whether to overturn a lower court ruling that Jose Padilla should be charged with a crime or released. In 2002, Padilla, a former Chicago gang member and Muslim convert, was taken into custody by the military and has been held without trial since.
The government alleges that Padilla, a U.S. citizen, trained with al Qaeda in Afghanistan and Pakistan and arrived in this country in May 2002 with the intent of blowing up apartment buildings.
The panel assigned to hear the arguments was Judge J. Michael Luttig of Alexandria, an appointee of President George H.W. Bush, and two appointees of President Bill Clinton: Judge M. Blane Michael of Charleston, W.Va., and Judge William B. Traxler Jr. of Greenville, S.C.
The judges were most concerned with how to handle Padilla in light of the U.S. Supreme Court's ruling last year on Yaser Esam Hamdi. Hamdi, also a U.S. citizen, was captured by the military with Taliban forces in Afghanistan and placed in a Navy brig in Norfolk. The Supreme Court ruled that his detention was lawful but that he was entitled to a hearing to challenge the allegations against him.
But moments after Clement began his oral argument, Luttig interrupted to say that "arguably, Judge [Sandra Day] O'Connor in 'Hamdi' limited that law to the battlefield detention, did she not?" Padilla was picked up at Chicago's O'Hare International Airport on a warrant from a federal court in New York and only later was turned over to the military.
"That's not how I would read the case," Clement responded.
Luttig repeatedly pressed Clement, even after the solicitor general noted that Padilla's alleged intentions as a soldier of al Qaeda -- to target civilians -- constituted "unlawful combatantcy" even if he were on a battlefield in uniform.
"Those accusations don't get you very far," Luttig replied, "unless you're prepared to boldly say the United States is a battlefield in the war on terror."
Clement answered, "I can say that, and I can say it boldly."
But Michael said Padilla wasn't captured anywhere near a battlefield. "You captured Padilla in a Manhattan jail cell," Michael said. "What, in the laws of war, allows you to undertake a non-battlefield capture and hold them for the duration? I don't think you cite anything."
Michael, addressing Clement's claim that the United States is a battlefield, then asked: "To call the United States a battlefield, wouldn't you have needed a specific authorization from Congress? It's not up to us as a court to develop laws of war."
Andrew G. Patel argued the case for Padilla, who has been held in a South Carolina brig for three years and only last year was granted the right to meet with his attorneys. "I may be the first lawyer to stand here and say I'm asking for my client to be indicted by a federal grand jury," Patel told the panel.
Padilla's attorneys believe that neither the Hamdi decision, nor a congressional authorization of military powers to the president in September 2001, negates a U.S. citizen's right to challenge the government's accusations at trial.
Michael said, "If we were to rule in your favor, we'd be saying you get a free pass to go back to the battle."
Patel responded, "What you'd get a free pass to is a federal indictment and trial."
Luttig posed a hypothetical in which the president learned that a terrorist was about to bomb a building in Manhattan. "Does he have to call a U.S. attorney and wait for the man to be picked up by civilian law enforcement? If the president sends the military, it's illegal?" Luttig asked.
"If the military picks him up, he must be surrendered to civilian authorities," Patel said.
"We might as well not have a president of the United States," Luttig said, "if his hands are tied behind his back to protect the citizens of the United States. . . . This is a failure to appreciate the real world circumstances that can confront a president of the United States."
Traxler spoke only once during the hour-long arguments, to ask if Luttig's hypothetical situation would be different if the terrorist were a foreign citizen, or in uniform. Patel said it would not, unless Congress specifically authorized the military to take such action.
"There is absolutely no emergency authority resident with the president of the United States," Luttig said. "That's the argument you're making, and it's a fine argument." But moments later, he added, "It seems to me that after the Supreme Court's ruling in Hamdi" and the congressional authorization for use of military force, "on the extant law, it's exceedingly difficult to maintain the position you have."
No date was set for when the panel might rule. The losing side could then ask that the entire 4th Circuit rehear the case, after which the case would probably head to the Supreme Court.
After the hearing, Donna Newman, another of Padilla's attorneys, said, "We are quite confident that we will prevail because there simply is no authority for the president to detain an American citizen on American soil.
"If the traditional sense of what the battlefield is has changed, then we need Congress to come in," she added. "We do not let a president determine ad hoc what a battlefield is."