Padilla ex rel. Newman v. Bush

• Decision Date: 04 December 2002
• Docket Number: No. 02CIV445(MBM).,02CIV445(MBM).
• Parties: Jose PADILLA, by Donna R. NEWMAN, as next friend, Petitioner, v. George W. BUSH, Donald Rumsfeld, and Commander M.A. Marr, Respondents.
• Court: U.S. District Court — Southern District of New York

Page 564

233 F.Supp.2d 564

Jose PADILLA, by Donna R. NEWMAN, as next friend, Petitioner, v. George W. BUSH, Donald Rumsfeld, and Commander M.A. Marr, Respondents.

No. 02CIV445(MBM).

United States District Court, S.D. New York.

December 4, 2002.

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Donna R. Newman, New York City, Andrew G. Patel, New York City, for Petitioner.

James B. Comey, United States Attorney for the Southern District of New York, New York City, Paul D. Clement, Deputy Solicitor General, David B. Salmons, Sri Srinivasan, Assistants to the Solicitor General, U.S. Department of Justice, Office of the Solicitor General, Washington, DC, Jonathan L. Marcus, Attorney, Department of Justice, U.S. Department of Justice, Washington, DC, Eric B. Bruce, Assistant U.S. Attorney, New York City, for Respondent.

Steven R. Shapiro, Lucas Guttentag, New York City, for Amicus Curiae American Civil Liberties Union Foundation.

Arthur N. Eisenberg, Christopher T. Dunn, Donna Lieberman, New York City, for Amicus Curiae New York Civil Liberties Union Foundation.

Kate Martin, Washington, DC, for Amicus Curiae Center for National Security Studies.

Donald G. Rehkopf, Law Offices of Brenna & Brenna, Rochester, NY, for Amici Curiae The New York State Association of Criminal Defense Lawyers and The National Association of Criminal Defense Lawyers.

OPINION AND ORDER

                TABLE OF CONTENTS
                  I. FACTUAL BACKGROUND .......................................................570
                 II. NEWMAN'S STANDING AS NEXT FRIEND .........................................575
                III. THIS COURT'S JURISDICTION ................................................578
                     A. Who Is A Proper Respondent? ...........................................578
                     B. Territorial Jurisdiction ..............................................583
                     C. Personal Jurisdiction .................................................587
                     D. Transfer to South Carolina ............................................587
                 IV. THE LAWFULNESS OF PADILLA'S DETENTION ....................................587
                     A. The President's Authority To Order That Padilla Be Detained As An
                         Enemy Combatant ......................................................588
                     B. Is Padilla's Detention Barred by Statute? .............................596
                  V. CONSULTATION WITH COUNSEL ................................................599
                 VI. THE STANDARD APPLICABLE TO THIS COURT'S REVIEW AND THE
                      FACTS THE COURT MAY CONSIDER ............................................605
                     A. Deference Due the President's Determination ...........................605
                     B. The Sealed Mobbs Declaration ..........................................608
                

MUKASEY, District Judge.

Petitioner in this case, Jose Padilla, was arrested on May 8, 2002, in Chicago, on a material witness warrant issued by this court pursuant to 18 U.S.C. § 3144 to enforce a subpoena to secure Padilla's testimony before a grand jury in this District. His arrest and initial detention were carried out by the U.S. Department of Justice. As the result of events described below — including the President's designation of Padilla as an enemy combatant associated with a terrorist network called al Qaeda — Padilla is now detained, without formal charges against him or the prospect of release after the giving of testimony before a grand jury, in the custody of the U.S. Department of Defense at the Consolidated Naval Brig in Charleston, South Carolina.

Through his attorney, Donna R. Newman, acting as next friend, Padilla has petitioned pursuant to 28 U.S.C. § 2241, seeking relief in the nature of habeas corpus, challenging the lawfulness of his detention, and seeking an order directing that he be permitted to consult with counsel. He has named as respondents President George W. Bush, Secretary of Defense Donald Rumsfeld, and Commander M.A. Marr, the officer in charge of the brig where he is detained.¹ The government has moved to dismiss the petition on several grounds, including that Newman lacks standing necessary to establish next friend status, and that this court lacks personal jurisdiction over any proper respondent, and over all of those named as respondents. Alternatively, the government moves to transfer the case to the District of South Carolina, where Padilla is held.

As to the merits, the government argues that the lawfulness of Padilla's custody is established by documents already before this court. Padilla argues that the President lacks the authority to detain him under the circumstances present here, including that he is a United States citizen arrested in the United States, and that in any event he must be permitted to consult with counsel.² The government has submitted a classified document in camera to be used, if necessary, in aid of deciding whether there exists evidence to justify the order directing that Padilla be detained.

For the reasons set forth below, the parties' applications and motions are resolved as follows: (i) Newman may pursue this petition as next friend to Padilla, and the government's motion to dismiss for lack of standing therefore is denied; (ii) Secretary Rumsfeld is the proper respondent in this case, and this court has jurisdiction over him, as well as jurisdiction to hear this case, and the government's motion to dismiss for lack of jurisdiction, or to transfer to South Carolina, is denied; (iii) the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla's detention is not per se unlawful; (iv) Padilla may consult with counsel in aid of pursuing this petition, under conditions that will minimize the likelihood that he can use his lawyers as unwilling intermediaries for the transmission of information to others and may, if he chooses, submit facts and argument to the court in aid of his petition; (v) to resolve the issue of whether Padilla was lawfully detained on the facts present here, the court will examine only whether the President had some evidence to support his finding that Padilla was an enemy combatant, and whether that evidence has been mooted by events subsequent to his detention; the court will not at this time use the document submitted in camera to determine whether the government has met that standard.

I. FACTUAL BACKGROUND

The immediate factual and legal predicate for this case lies in the September 11, 2001 attacks on this country, and the government's response. On that date, as is well known, 19 terrorists associated with an organization called al Qaeda hijacked four airplanes, and succeeded in crashing three of them into public buildings they had targeted — one into each of the two towers of the World Trade Center in New York, and one into the Pentagon near Washington, D.C. The World Trade Center towers were destroyed and the Pentagon was seriously damaged. Passengers on the fourth airplane sought to overpower the hijackers, and in so doing prevented that airplane from being similarly used, although it too crashed, in a field in Pennsylvania, and all aboard were killed. In all, more than 3,000 people were killed in that day's coordinated attacks.

On September 14, 2001, by reason of those attacks, the President declared a state of national emergency. On September 18, 2001, Congress passed Public Law 107-40, in the form of a joint resolution that took note of "acts of treacherous violence committed against the United States and its citizens," of the danger such acts posed to the nation's security and foreign policy, and of the President's authority to deter and prevent "acts of international terrorism against the United States." The resolution, entitled "Authorization for Use of Military Force," (the "Joint Resolution") then provided as follows:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.

Authorization for Use of Military Force, Pub. Law No. 107-40, § 2(a), 115 Stat. 224, 224 (2001).³ As the term "Public Law" connotes, the President signed the Joint Resolution.

On November 13, 2001, the President signed an order directing that persons whom he determines to be members of al Qaeda, or other persons who have helped or agreed to commit acts of terrorism aimed at this country, or harbored such persons, and who are not United States citizens, will be subject to trial before military tribunals, and will not have recourse to any other tribunal, including the federal and state courts of this country. He specifically cited the Joint Resolution in the preamble to that order. Mil. Order of Nov. 13, 2001, 66 Fed.Reg. 57,833, 57,833 (Nov. 16, 2001).

As previously noted, on May 8, 2002, this court, acting on an application by the Justice Department pursuant to 18 U.S.C. § 3144,⁴ based on facts set forth in the affidavit of Joseph Ennis, a special agent of the FBI, found that Padilla appeared to have knowledge of facts relevant to a grand jury investigation into the September 11 attacks. That investigation included an ongoing inquiry into the activities of al Qaeda, an organization believed to be responsible for the September 11 attacks, among others, and to be committed to and involved in planning further attacks. On May 15, 2002, following Padilla's removal from Chicago to New York, where he was detained in the custody of the Justice Department at the Metropolitan Correctional Center ("MCC"), he appeared before this court, and Donna R. Newman, Esq. was appointed to represent him. After Newman had conferred with Padilla at the MCC, and following another court appearance on May 22, 2002,...