352 F.3d 695 (2nd Cir. 2003), 03-2235, Padilla v. Rumsfeld

Docket Nº:03-2235
Citation:352 F.3d 695
Party Name:Padilla v. Rumsfeld
Case Date:December 18, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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352 F.3d 695 (2nd Cir. 2003)

Jose PADILLA, Donna R. Newman, as Next Friend of Jose Padilla, Petitioner-Appellee-Cross-Appellant,


Donald RUMSFELD, Respondent-Appellant-Cross-Appellee.

Docket Nos. 03-2235(L), 03-2438(CON.).

United States Court of Appeals, Second Circuit

December 18, 2003

Argued: Nov. 17, 2003.

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Paul D. Clement, Deputy Solicitor General, Washington, D.C. (David B. Salmons, Sri Srinivasan, Assistants to the Solicitor General, Jonathan L. Marcus, Attorney, Department of Justice, Washington, D.C., James B. Comey, United States Attorney for the Southern District of New York, Eric B. Bruce, Christine H. Chung, Assistant United States Attorneys, New York, NY, on the brief), for Respondent-Appellant-Cross-Appellee.

Donna R. Newman, Andrew G. Patel, New York, NY, for Petitioner-Appellee-Cross-Appellant.

Jenny S. Martinez, Stanford, CA; David W. DeBruin, Donald B. Verrilli, Jr., Sharon M. McGowan, Jenner & Block LLC, Washington, D.C., for Amici Curiae Hon. John J. Gibbons, Hon. Nathaniel R. Jones, Hon. Abner J. Mikva, Hon. William A. Norris, Hon. H. Lee Sarokin, Hon. Harold R. Tyler, Jr., Donald Francis Donovan, Scott Greathead, Robert E. Juceam, Philip Allen Lacovara, Robert Todd Lang, Robert M. Pennoyer, Barbara Paul Robinson, and William D. Zabel in support of Petitioner.

Alfred P. Carlton, Jr., American Bar Association; John Payton, Seth P. Waxman, Paul R.Q. Wolfson, Kate Hutchins, Jonathan H. Siegelbaum, Jerrod C. Patterson, Chicago, IL, for Amicus Curiae American Bar Association in support of Petitioner.

Steven R. Shapiro, American Civil Liberties Union Foundation; Arthur N. Eisenberg, New York Civil Liberties Union Foundation; Lucas Guttentag, Robin L. Goldfaden, Jonathan L. Hafetz, American Civil Liberties Union Foundation Immigrants' Rights Project, New York, NY, for Amici Curiae American Civil Liberties Union and New York Civil Liberties Union in support of Petitioner.

Benito Romano, Joseph G. Davis, Mary Eaton, Willkie Farr & Gallagher, New York, NY, for Amicus Curiae Association of the Bar of the City of New York in support of Petitioner.

Jonathan M. Freiman, Lawyers Committee for Human Rights, New Haven, CT; Wiggin & Dana LLP, New Haven, CT, for Amici Curiae The Cato Institute,

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The Center for National Security Studies, The Constitution Project, The Lawyers Committee for Human Rights, People for the American Way, and The Rutherford Institute in support of Petitioner.

Barbara J. Olshansky, Jules Lobel, Michael Ratner, Shayana Kadidal, Nancy Chang, Jennifer Green, Center for Constitutional Rights, New York, N.Y. for Amici Curiae Center for Constitutional Rights, Asian American Legal Defense and Education Fund, Center for Human Rights & Constitutional Law, National Lawyers Guild, National Immigration Project of the National Lawyers Guild, National Lawyers Guild/Maurice & Jane Sugar Law Center for Economic & Social Justice, Unitarian Universalist Service Committee, et al. in support of Petitioner.

Allison Marston Danner, Nashville, TN, for Amici Curiae Experts on the Law of War in support of Petitioner.

Wallace A. Showman LLP, New York, NY, for Amici Curiae Law Professors in support of Petitioner.

Joshua L. Dratel, Joshua L. Dratel, P.C., New York, NY; Donald G. Rehkopf, Jr., Law Office of Brenna & Brenna, Rochester, NY, for Amici Curiae National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers in support of Petitioner.

Edward M. Shaw, New York Council of Defense Lawyers; Richard A. Greenberg, New York Council of Defense Lawyers, New York, NY, for Amicus Curiae The New York Council of Defense Lawyers in support of Petitioner.

James W. Klein, Giovanna Shay, Timothy P. O'Toole, Public Defender Service, Washington, D.C., for Amicus Curiae Public Defender Service for the District of Columbia in support of Petitioner.

Rachel H. Wolkenstein, Paul Cooperstein, New York, NY, for Amici Curiae Spartacist League and Partisan Defense Committee in support of Petitioner.

Daniel J. Popeo, Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amici Curiae Washington Legal Foundation, Allied Educational Foundation, and U.S. Representatives Walter Jones, Lamar Smith, and John Sweeney in support of Respondent.

Before: POOLER, B.D. PARKER and WESLEY, Circuit Judges.

Judge WESLEY dissents in part in a separate opinion.


POOLER and B.D. PARKER, Jr., Circuit Judges.

This habeas corpus appeal requires us to consider a series of questions raised by Secretary of Defense Donald Rumsfeld and by Donna R. Newman, Esq., on behalf of Jose Padilla, an American citizen held by military authorities as an enemy combatant. Padilla is suspected of being associated with al Qaeda and planning terrorist attacks in this country. The order was raising these questions was certified by the United States District Court for the Southern District of New York (Michael B. Mukasey, C.J.) and involve, among others: whether the Secretary of Defense is Padilla's "custodian" for habeas purposes, whether the Southern District of New York had jurisdiction over the petition, and whether the President has the authority to detain Padilla as an enemy combatant. We conclude that the Secretary of Defense is a proper respondent and that the District Court had jurisdiction. We also conclude that Padilla's detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.

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As this Court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the President and law enforcement officials bear for protecting the nation. But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the President is obligated, in the circumstances presented here, to share them with Congress.

Where, as here, the President's power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. § 4001(a) (2000) (the "Non-Detention Act") prohibits such detentions absent specific congressional authorization. Congress's Authorization for Use of Military Force Joint Resolution, Pub.L. No. 107-40, 115 Stat. 224 (2001) ("Joint Resolution"), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists. In light of this express prohibition, the government must undertake to show that Padilla's detention can nonetheless be grounded in the President's inherent constitutional powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38, 72 S.Ct. 863, 96 L.Ed. 1153 (Jackson, J., concurring). We conclude that it has not made this showing. In reaching this conclusion, we do not address the detention of an American citizen seized within a zone of combat in Afghanistan, such as the court confronted in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) ("Hamdi III "). Nor do we express any opinion as to the hypothetical situation of a congressionally authorized detention of an American citizen.

Accordingly, we remand to the District Court with instructions to issue a writ of habeas corpus directing Secretary Rumsfeld to release Padilla from military custody within 30 days, at which point the government can act within its legislatively conferred authority. For example, Padilla can be transferred to the appropriate civilian authorities who can bring criminal charges against him. If appropriate, he can also be held as a material witness in connection with grand jury proceedings. See United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003). Under any scenario, Padilla will be entitled to the constitutional protections extended to other citizens. 1


I. The Initial Detention

On May 8, 2002, Jose Padilla, an American citizen, flew on his American passport from Pakistan, via Switzerland, to Chicago's O'Hare International Airport. There he was arrested by FBI agents pursuant to a material witness warrant issued by the Chief Judge of the Southern District of New York in connection with a grand jury investigation of the terrorist attacks of September 11. Padilla carried no weapons or explosives. 2

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The agents brought Padilla to New York where he was held as a civilian material witness in the maximum security wing of the Metropolitan Correctional Center (MCC). At that point, Padilla was under the control of the Bureau of Prisons and the United States Marshal Service. Any immediate threat he posed to national security had effectively been neutralized. On May 15, 2002, he appeared before Chief Judge Mukasey, who appointed Donna R. Newman, Esq., to represent Padilla. Newman "conferred with [Padilla] over a period of weeks in ... an effort to end [his] confinement." Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564, 576 (S.D.N.Y.2002) ("Padilla I"). She also conferred with Padilla's relatives and with government representatives on Padilla's behalf.

On May 22, Newman moved to vacate the material witness warrant. By June 7, the motion had been submitted for decision. A conference on the motion was scheduled for June 11. However, on June 9, the government notified the court ex parte that (1) it wished to withdraw its subpoena and (2) the President had issued an Order (the "June 9 Order") designating Padilla as an enemy combatant and directing Secretary Rumsfeld to detain him. Chief Judge Mukasey vacated the warrant, and Padilla was taken into...

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