WASHINGTON U.S. terror detainees win access to court

An alleged Al-Qaida terror conspirator must be charged, a judge ruled.
LOS ANGELES TIMES
WASHINGTON -- Dealing a double blow to the Bush administration, federal appeals courts said Thursday that the government had acted illegally in holding a U.S.-born "enemy combatant" in a military brig and in denying hundreds of foreigners at the U.S. Naval base at Guantanamo Bay, Cuba, the right to challenge their detention.
A federal appeals court in New York ruled that the president does not have the authority as commander-in-chief to arrest American citizens on U.S. soil and hold them without filing criminal charges.
The president's wartime powers do not extend to the home front, the appeals courts said, unless Congress authorizes the chief executive to act. And neither the Constitution nor federal law gives the president an "inherent power" to make arrests, said the judges of the 2nd U.S. Circuit Court of Appeals.
Two decisions
The 2-1 decision gave the government 30 days to release Jose Padilla -- a Brooklyn-born Muslim who allegedly conspired with Al-Qaida operatives to detonate a "dirty bomb" in the United States -- from a military brig.
The judges did not say Padilla must go free. Instead, they said the government must charge him with a crime if it wants to hold him.
In a separate 2-1 decision in San Francisco, the 9th U.S. Circuit Court of Appeals said the government must give Guantanamo detainees a chance to speak to a lawyer and seek their release through the courts. Some 660 suspected terrorists and war criminals are being held at the base.
The Bush administration contends that the captives are held on foreign soil. The judges of the 9th Circuit ruled that the U.S. has power over the base even though the government leases it from Cuba, and consequently the captives are entitled to access to the American legal system.
A Justice Department spokesman said lawyers at the agency were studying the decision. Mark Corallo, the spokesman, reiterated the position the department has asserted in several Guantanamo-related cases over the past two years -- that U.S. courts have no authority to consider a case involving a noncitizen held by the U.S. military abroad.
Thursday's ruling in the Padilla case is broad in its sweep and narrow in its impact. While it puts a clear limit on the president's powers, its holding applies only to Padilla. The 33-year Muslim convert is the only native-born "enemy combatant" who was arrested in the United States. The New York court said it was not contesting the president's authority to hold an "enemy combatant" who was picked up on a foreign battlefield.
White House reaction
The White House quickly denounced the ruling and said it would appeal.
"We believe the 2nd Circuit ruling is troubling and flawed," said White House spokesman Scott McClellan. "This is a case in which an individual was involved with terrorist organization activity and was actively engaged in an effort to do harm to the American people. The president has repeatedly said that his most solemn obligation and responsibility is to protect the American people, and the . . . ruling is really inconsistent with the clear authority of the president."
Administration lawyers will ask the court to puts its ruling in the Padilla case on hold. They can then ask the full appeals court to reconsider the matter. Failing that, they can appeal to the U.S. Supreme Court.
Last month, the Supreme Court agreed to hear an appeal filed on behalf of the Guantanamo detainees. Most were picked up in Afghanistan or Pakistan, and U.S. authorities said they were working with terrorists or the Taliban. Lawyers working on their behalf said they deserved at least a hearing to try to show they are innocent.
Civil libertarians hailed the ruling as reaffirming a basic principle of American law. "This decision is a victory for the Constitution," said Deborah Pearlstein of the Lawyers Committee for Human Rights, which organized a coalition of groups that supported Padilla's claim.
Padilla case
Padilla was arrested at Chicago's O'Hare Airport on May 8, 2002, after a flight from Pakistan. FBI agents who were aboard the flight then took him to New York, where he was held as a possible witness in the investigation of the terrorist attacks on the World Trade Center the year before.
He was assigned a lawyer, Donna Newman, who met with him, and she prepared a motion to seek his release. On June 9, however, Padilla was taken into military custody and sent to a military brig in Charleston, S.C.
The government said the president had designated Padilla an "enemy combatant" and turned him over to the authority of Defense Secretary Donald H. Rumsfeld. In a dramatic announcement,
Attorney General John Ashcroft, speaking from Moscow, said the government had interrupted a plot to detonate a radioactive "dirty bomb" in the United States.
Administration lawyers argued that because Al-Qaida had brought the war on terrorism to the United States, the president had the authority to arrest enemy agents who operated here, even if they were American citizens.
Since Ashcroft's announcement, Newman and Padilla's relatives have been barred from speaking to him. No charges have been filed.
Newman filed a writ of habeas corpus contending that her client was being held illegally. In response, the government said she had no standing to speak for him, and the courts in New York no longer had jurisdiction to rule on the matter.
A federal judge agreed that the government could hold Padilla, but ruled that the lawyer had a right to speak with her client and to prepare a challenge to his detention.
Appeals
Both sides appealed. Last month, the case came before a three-judge panel of the 2nd Circuit -- Judge Rosemary Pooler, a Clinton appointee; Richard Wesley, a new Bush appointee, and Barrington Parker Jr., who was first named as trial judge by President Clinton and elevated to the appeals court by President Bush.
On Thursday, the court's opinion by Pooler and Parker said the administration acted illegally by holding Padilla in military custody.
Despite his victory, Padilla is unlikely to go free any time soon. An appeal to the Supreme Court could take several months. And if the administration loses, it could then file criminal charges against Padilla and hold him pending a trial.