Executive Branch Has No Power to Detain Citizens Indefinitely Without Explicit Congressional Authorization

In an amicus curiae brief filed today with the U.S. Court of Appeals for the Second Circuit, People For the American Way Foundation argues that the ongoing detention of Jose Padilla is unconstitutional. Joining the brief along with PFAWF is an extraordinary collection of organizations, some of whom disagree with much of our work. The right-of-center CATO Institute and Rutherford Institute have joined, along with the Center for National Security Studies and Lawyers’ Committee on Human Rights, who spearheaded the effort.

“Jose Padilla has been held without charge, without legal counsel, and without due process for 446 days. The government’s claims against Padilla may have merit, but its indefinite detention of an American citizens certainly doesn’t,” said Ralph G. Neas, president of People For the American Way Foundation. “The war on terrorism must go on, but this administration cannot abandon the Constitution and the laws of this nation when it sees fit.”

The brief argues that the administration’s indefinite detention of Jose Padilla is illegal under principles outlined in the Constitution and specifically under a U.S. law which states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Padilla’s designation by the executive branch as an “enemy combatant,” the brief explains, doesn’t permit the government to flout this law.

“The White House doesn’t have the power to suspend habeas corpus indefinitely,” said People For the American Way Foundation Vice President and Legal Director Elliot Mincberg. “The Framers indicated their intentions to keep all powers from being collected by one branch of government. Congress passed legislation locking in this intent, forbidding the executive branch from detaining any American citizen unless Congress specifically authorizes such a detention.”

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, unable 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, now pending in the U.S. Court of Appeals for the Second Circuit.

“The guilt or innocence of Jose Padilla is not at issue here. What we are discussing is the administration’s ability to sweep an American citizen off the street and with a stroke of the pen declare that citizen’s constitutional rights null and void. This brief argues that this certainly cannot occur without congressional authorization,” said Neas. “ And even with congressional authorization, we question the validity of a policy of indefinite detentions.”