Executive Branch Detention of Padilla Unauthorized, Unconstitutional

In an amicus curiae brief filed in the case Rumsfeld v. Padilla with the U.S. Supreme Court, People For the American Way Foundation supports the U.S. Court of Appeals for the Second Circuit’s decision stating that President Bush cannot indefinitely detain American citizens seized on American soil without Congressional authorization. PFAWF filed this brief in coalition with Human Rights First (formerly the Lawyers Committee for Human Rights) and the right wing Rutherford Institute, a group that usually opposes PFAWF on religious liberty cases and other issues.

“The president continues to maintain that he can hold American citizens on American soil indefinitely and without constitutional protections in the name of the ‘war on terror,’ said PFAWF President Ralph G. Neas. “If charges were brought against Padilla they may have merit, but this does not mean the administration can abandon the Constitution and the law of this land when it sees fit. Groups on the right and the left agree that such unilateral action is improper.”

The brief argues against the executive branch’s claims that the president can unilaterally determine when the nation is engaged in conflict, what countries are the enemy, and whether American citizens on American soil are ‘enemy combatants’ and can be detained for indefinite periods of time without access to legal counsel. Under the Constitution and specifically under well-established U.S. law stating, “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” the detention of Jose Padilla is illegal.

“The framers of the Constitution made it clear that it was their intention to keep all powers from being centralized within one branch of government. Congress reaffirmed this intent with legislation forbidding the executive branch from detaining any American citizen unless authorized by Congress to do so,” said PFAWF Vice President and Legal Director Elliot Mincberg. “The president’s assertion of unchecked power to deprive American citizens of their basic constitutional protections is squarely at odds with the law of the land.”

Jose Padilla was arrested in Chicago, IL on May 8, 2002, after arriving from Pakistan on a commercial aircraft. Padilla was held by civilian authorities until June 9, 2002, when he was transferred to military custody, and removed to a naval brig in South Carolina. He remains in custody there, limited in his ability to communicate with family members or his attorneys. Attempts by those attorneys to communicate with and mount a defense for Padilla are under review in the case, and the arguments in Rumsfeld v. Padilla will be heard before the U.S. Supreme Court on April 28, 2004.