Federal Judge’s Ruling: Charge Jose Padilla or Release Him

By Linda Orlando

Jose Padilla, the 33-year-old American suspected of plotting with Al Qaeda to blow up apartments and detonate "dirty bombs" in the US, will be able to go free in 45 days unless the government finally brings charges against him for one or more of the heinous crimes he allegedly committed. Padilla has been detained for two and a half years as a military prisoner in Spartanburg, South Carolina. He was arrested in May 2002 after landing at an airport in Chicago and transferred to New York as a material witness in the investigation of the 9/11 attacks there. He has never been charged with a crime, but President Bush almost immediately declared him a "grave threat to national security" and delivered him into military custody at the Charleston Naval Brig, where he was denied access to an attorney for two years.

According to the written order from U.S. District Judge Henry Floyd, "His alleged terrorist plans were thwarted at the time of his arrest. There were no impediments whatsoever to the government bringing charges against him for any or all of the heinous crimes that he has been effectively accused of committing. Since his alleged terrorist plans were thwarted when he was arrested on the material witness warrant, the court finds that the president's subsequent decision to detain him as an enemy combatant was neither necessary nor appropriate." These feelings have been voiced for over two years by Denyse Williams, executive director of the American Civil Liberties Union in South Carolina, which filed a brief in support of Padilla's attorneys to have his case reviewed. "If everything you say about Jose Padilla is true, prove it," said Williams. "Everybody says the war on terror could last a lifetime. If they can do it to him, they can do it to others."

When Judge Floyd made his ruling to release Padilla or bring charges, Justice Department spokesman John Nowacki immediately responded that they would appeal the judge’s decision. The government has consistently argued that the president’s constitutional authority as Commander-in-Chief, as well as Congress’s authorization for the use of military force against the perpetrators on the 9/11 attacks, are lawful grounds for Padilla’s incarceration. But in making his ruling, Judge Floyd said there is a difference between enemies captured during military operations abroad and suspected terrorists who are arrested on American soil.

As clarification, he pointed to the Supreme Court’s ruling in the enemy combatant case of Yaser Hamdi, where the majority of the Court ruled that a state of war "is not a blank check for the President when it comes to the rights of the nation’s citizens." Since both Hamdi and Padilla are U.S. citizens, Floyd’s ruling addressed that point specifically. "To be more specific," he wrote, "whereas it may be a necessary and appropriate use of force to detain a United States citizen who is captured on the battlefield, this court cannot find, in narrow circumstances presented in this case, that the same is true when a United States citizen is arrested in a civilian setting such as a United States airport." The two cases differ in other ways as well; Hamdi was allegedly carrying an assault rifle and traveling with Taliban troops, while Padilla was carrying no weapons and wearing civilian clothing. According to Floyd, "The President’s use of force to capture Mr. Hamdi was necessary and appropriate. Here, that same use of force was not."

The basic premise of Floyd’s ruling is that if the government is holding Padilla indefinitely in order to prevent him from rejoining and collaborating with his Al Qaeda contacts, then the President needs to ask Congress to pass a law permitting such incarcerations. "If the law in its current state is found by the President to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the President should prevail upon Congress to remedy the problem," Floyd wrote. "It is true that there may be times during which it is necessary to give the executive branch greater power than at other times. Such a granting of power, however, is in the province of the legislature and no one else—not the court, and not the President."