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Court upholds power of White House to jail citizens as “enemy combatants”
by wsws (reposted)
Tuesday Sep 13th, 2005 8:18 AM
In a ruling with vast implications for basic democratic rights, a three-judge panel of the United States Court of Appeals for the Fourth Circuit ruled Friday that the Bush administration can continue to incarcerate Jose Padilla, seized May 8, 2002 at Chicago’s O’Hare airport, in a military prison, without filing any charges against him.
The ruling attacks the right to be free from arbitrary imprisonment, the fundamental liberty dating back in Anglo-American law to the Magna Carta of 1215, as well as basic notions of due process. It demonstrates the extent to which the American ruling elite has broken with democratic standards and traditions.

The sole basis for Padilla’s imprisonment is President Bush’s June 9, 2002 proclamation that he “is, and at the time he entered the United States in May 2002 was, an enemy combatant.” No attempt has ever been made to actually prove this charge, and the category “enemy combatant” itself is without precedent in domestic and international law.

The Bush administration came up with the designation after the September 11 terrorist attacks to place people outside both criminal law, with its attendant panoply of constitutional rights, and the Geneva Conventions on the treatment of prisoners of war. While so far used only against alleged fundamentalist Islamic militants, its rationale supports a much wider application—the rounding up and imprisonment of opponents of US imperialism generally.

The FBI arrested Padilla after he walked off a plane from Switzerland on a “material witness” warrant issued by a New York Grand Jury. The seizure was not made public until a month later, however, when then-Attorney General John Ashcroft announced in a televised press conference that the arrest had frustrated Padilla’s plan to detonate a “dirty bomb”—a conventional explosive wrapped in radioactive material—inside a major US city. The government has since withdrawn the “dirty bomb” claim, and now contends that Padilla was planning to fill apartments with natural gas and detonate them with timing devices.

Padilla was initially held in a New York City federal jail. After his public defender, Donna Newman, filed court papers seeking his release, the Bush administration moved him to a naval brig in Charleston, South Carolina. The New York federal court and the Second Circuit Court of Appeals both found that the government’s shell game did not deprive them of jurisdiction over Padilla’s habeas corpus petition and ruled in his favor, ordering Secretary of Defense Donald Rumsfeld to turn him over to civilian authorities for criminal prosecution, or release him. (See “Two appellate courts rule against Bush administration detentions”.)

The Bush administration’s appeal reached the US Supreme Court at the same time as the habeas corpus petition filed on behalf of Yasser Hamdi, a US citizen born to Saudi parents who was captured among Taliban fighters by the Northern Alliance in November 2001, after the US invaded Afghanistan. In June 2004, the Supreme Court rejected the Bush administration’s position that Hamdi could be held without any hearing into his status as an “enemy combatant.” It did not review Padilla’s habeas corpus petition, however, ruling instead that the petition should have been brought in South Carolina, within the Fourth Circuit, the most right-wing federal court in the nation.

Padilla’s lawyers refiled in South Carolina, where United States District Judge Henry F. Floyd came to the same conclusion as the Second Circuit, again ordering the government either to charge Padilla with a crime or release him. In a stinging rebuke, Floyd—himself a recent Bush appointee—wrote that if the government’s “position were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenry’s individual liberties.” (See “Judge orders end to indefinite detention of Jose Padilla”.)

The Fourth Circuit reversed Floyd’s ruling, adopting the government’s position granting Bush virtually unlimited power to declare people unlawful combatants and imprison them without trial.

Significantly, the author of Friday’s ruling is Judge J. Michael Luttig, one of the likely candidates to replace Sandra Day O’Connor as an associate justice on the Supreme Court. A prominent member of the coterie of right-wing Republican judges and lawyers who now dominate the federal judiciary, he began his own legal career as a law clerk for Antonin Scalia before Scalia’s own appointment to the high court, and then served as a law clerk for Chief Justice Warren Burger. After a few years in private practice, Luttig joined the Justice Department during the administration of George H. W. Bush, who appointed him to the Fourth Circuit at the unusually young age of 37.

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