Groups Cross Political Divide to Defend Due Process

People For the American Way Foundation and the Rutherford Institute filed a joint amicus brief in the case Padilla v. Hanft in support of a ruling by U.S. District Judge Henry Floyd, which found that the government could not indefinitely detain Jose Padilla, an American seized on American soil and detained without charge since 2002 – instead it must either charge him with a crime or release him. The joint brief, drafted with the Chicago office of Sidley & Austin, was filed in the U.S. Court of Appeals for the Fourth Circuit in response to a government appeal seeking to overturn the lower court decision.

“We don’t often see eye to eye with Rutherford,” said Ralph G. Neas, president of People For the American Way Foundation, “but we are in complete agreement on the constitutionally guaranteed right to due process.” “Under the constitution and well-established U.S. law, the ongoing detention of Jose Padilla is illegal.”

The brief argues that the extra-judicial detention of an American citizen seized on American soil requires Congressional authorization. Absent this, Padilla must be brought before a court before being deprived of liberty. The administration asserts that a vaguely worded passage in the 2001 Authorization for Use of Military Force (AUMF) grants the president discretion to unilaterally determine whether an American citizen seized on American soil can be classified as an “enemy combatant” and detained indefinitely without legal recourse. But such vague authorizations of force have never been found to grant such general detention powers, and when Congress has expressly authorized greater detention powers in the past it has always granted citizens the right to challenge their detentions.

“Our nation’s founders had the wisdom to separate the power to make law from the power to enforce it,” said Neas. “This administration has short-circuited this safeguard by claiming unfettered detention powers that were never granted to it by Congress.”

As the brief explains, the Bush administration has created a situation where non-citizens suspected of terrorism are afforded more rights and procedural protections than Americans suspected of identical crimes, even if they are seized on American soil. The brief also explains why the precedents set in Quirin and Hamdi do not apply to Padilla and in no way authorize extra-judicial detentions of Americans seized on American soil.

“The administration cannot abandon the Constitution and rule of law whenever it sees fit,” said Neas. “If Padilla is guilty of crimes, then he should be charged and tried before a court. The president cannot single-handedly act as judge, jury and jailer and throw away the key.”

The brief is available here.