By JOANNE MARINER, Wednesday, Sep. 14, 2005
From: Findlaw

Jose Padilla, an American citizen arrested in Chicago in
May 2002, has been held more than three years in a Navy
brig without charge. The truth of the allegations against
him – that he planned to commit acts of terrorism — has
never been tested in court.

Last week, the U.S. Court of Appeals for the Fourth
Circuit upheld Padilla’s detention, reversing a lower
court decision that had said that Padilla should be either
charged or released. Relying on the Supreme Court’s 2004
ruling in Hamdi v. Rumsfeld — a case involving Yaser
Hamdi, an American citizen captured on the battlefield in
Afghanistan — the Fourth Circuit found that Congress had
authorized Padilla’s detention by passing a joint resolution on the use of military force in Afghanistan.

Much of the Fourth Circuit’s opinion examines the
relevance of the fact that Yaser Hamdi was captured in
Afghanistan, in the midst of war, while Padilla was picked
up in a civilian airport in Chicago. This difference,
which the lower court found to be dispositive of the case,
is dismissed by the Fourth Circuit as meaningless. Under a
fair interpretation of the Supreme Court’s plurality
opinion in Hamdi, argues the Fourth Circuit, there is no
room for a distinction based on the place of the
detainee’s capture.

But left unaddressed in the Fourth Circuit’s opinion is
another, far more crucial difference between Hamdi and
Padilla. This issue, which the Fourth Circuit does not
mention, let alone engage, was nonetheless discussed quite
explicitly in the Supreme Court’s plurality opinion in

Padilla, unlike Hamdi, is not alleged to be a Taliban,
someone who under international law should be released at
the end of the hostilities in Afghanistan. Rather, if the
government’s allegations are true, Padilla is “closely
associated with al Qaeda” and made preparations for “acts
of international terrorism.”

Padilla is, in short, an alleged criminal, not a soldier.
He is not being held as a consequence of the war in
Afghanistan, but instead as part of the government’s ill-
defined and open-ended “war on terror.” And if the
government’s terrorism allegations are true, he should be
prosecuted, not released.

But, of course, the only way to ascertain the truth of the
government’s allegations is to subject them to a fair
judicial proceeding – precisely what the Fourth Circuit
has now said is unnecessary.

War on Terror, or War in Afghanistan?

In justifying its ruling, the Fourth Circuit cherry-picked
the Supreme Court’s plurality opinion in Hamdi for
supportive language, ignoring the rest. The key point that
the Fourth Circuit failed to address is the Supreme Court
plurality’s very clear differentiation between the war in
Afghanistan and the “war on terror.” And not only does the
plurality distinguish the two, it also emphasizes that its
ruling applies narrowly to the former, without
encompassing the latter.

In the government’s preferred view of things, the conflict
in Afghanistan is part of a broader struggle: a global war
on terror. The Supreme Court plurality, in upholding
Hamdi’s detention, acknowledges this view but does not
endorse it. It recognizes that since Hamdi is, at most, a
traditional combatant fighting a traditional war, the
question of detaining suspected terrorists for the
duration of a long-term, open-ended war on terror is not
under review.

To underscore this position, the Supreme Court’s plurality
opinion pointedly characterizes the conflict in
traditional terms. It notes that “active combat operations
against Taliban fighters apparently are ongoing in
Afghanistan.” And it concludes that as long as the U.S.
continues to fight this war, then the Pentagon may hold
members of the Taliban as detained combatants.

But not only does the plurality opinion clearly not uphold
the detention of a Padilla – that is, a person suspected
of planning terrorism, not of fighting in a traditional
war — it even casts doubt on whether such a detention
could be justified. It cautions, notably, that the
underpinnings of the so-called war on terror are “broad
and malleable.” And while it concludes that Congress has
authorized the detention of enemy combatants for the
duration of the Afghanistan conflict, it adds that it
might hesitate to find that Congress has done so for a
conflict whose practical circumstances “are entirely
unlike those of the conflicts that informed the
development of the law of war.”

Planning to Return to Battle, or Planning to Blow up
Apartment Buildings?

Not a hint of the Supreme Court’s complex reasoning is
found in the Fourth Circuit’s opinion. Indeed, the Fourth
Circuit’s failure to acknowledge the distinctions set out
in the Court’s plurality opinion is apparent from its very
first line. In referring to the U.S. “war against al
Qaeda,” rather than the Afghanistan conflict, the Fourth
Circuit leaves deliberate ambiguity as to whether the
relevant conflict is the global “war on terror” or the
limited conflict in Afghanistan.

In key points in the opinion, moreover, the Fourth Circuit
resolves this opening ambiguity in favor of the broad war
on terror, not the war in Afghanistan. It asserts, for
example, that Padilla came to this country “for the
purpose of blowing up apartment buildings, in continued
prosecution of al Qaeda’s war of terror against the United
States.” Referring to September 11th, the Fourth Circuit
states, at the opinion’s close, that the detention of
enemies like Padilla protects the United States “from the
very kind of savage attack that occurred four years ago
almost to the day.”

The disingenuousness of the Fourth Circuit’s approach is
evident when it gets into the nuts and bolts of justifying
Padilla’s detention. Reciting the allegations asserted by
the U.S. government, it states that “[t]hese facts
unquestionably establish that Padilla poses the requisite
threat of return to battle in the ongoing armed conflict
between the United States and al Qaeda in Afghanistan.”

Here, to assimilate the case to the Hamdi case, the Fourth
Circuit makes an explicit reference to the conflict in
Afghanistan. But it also makes a glaringly obvious
misstatement. As the Fourth Circuit is fully aware,
Padilla’s possible return to Afghanistan is unquestionably
not the issue in this case.

The real issue is, as the Fourth Circuit makes clear
elsewhere, whether Padilla would pose a threat to the
United States from within the United States. It is whether
Padilla is a terrorist associated with al Qaeda, not a
combatant fighting for the cause of a Taliban-governed

As the Fourth Circuit well knows, the existence of an
armed conflict in Afghanistan is entirely irrelevant to
the U.S. government’s interest in detaining suspected
terrorists at home. If the U.S. believes that Padilla is
in league with al Qaeda, it will try to hold him
regardless of future developments in Afghanistan. (In
fact, most experts recognize that the international armed
conflict in Afghanistan ended some time ago; what is left
now is an internal armed conflict between the Afghanistan
government — aided by the U.S. — and the Taliban

What Is at Stake

The Fourth Circuit’s aggressive misreading of the Supreme
Court’s plurality opinion in Hamdi is not just wrong as a
matter of law. It is, more importantly, wrong as a matter
of principle.

Justice John Paul Stevens put the matter bluntly when he
dissented from the Court’s 2004 decision to dismiss the
Padilla case on procedural grounds: “At stake in this case
is nothing less than the essence of a free society.”

As he explained: “Even more important than the method of
selecting the people’s rulers and their successors is the
character of the constraints imposed on the Executive by
the rule of law. Unconstrained Executive detention for the
purpose of investigating and preventing subversive
activity is the hallmark of the Star Chamber.”

Joanne Mariner is a New York-based human rights lawyer.
Her previous columns on terrorism, the war in Afghanistan,
and the Hamdi and Padilla cases may be found in FindLaw’s