November 13, 2014

Federal Bar Council News / Written by: Bennette Deacy Kramer

The issue of how much process is due in connection with habeas corpus petitions brought by detainees labeled "enemy combatants" following 9/l1 was addressed recently by Judge Michael Mukasey in the Southern District of New York and by the Fourth Circuit. Although the two courts appear to have reached opposite decisions, the two decisions are based on different facts and their similarities are greater than their differences.


In Padilla v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002) ("Padilla I"), Judge Mukasey held that Padilla's lawyer could pursue the petition as "next friend" to Padilla; the President of the United States is authorized under the Constitution and by law to detain enemy combatants under the circumstances; Padilla may consult with counsel to pursue his habeas petition and submit facts and arguments in support of the petition; and "to resolve the issue of whether Padilla was lawfully detained on the facts present here, the court will examine only whether the President has some evidence to support his finding that Padilla was an enemy combatant." Judge Mukasey rejected the government's two principal arguments that Padilla should not be allowed to consult with counsel and that the evidence the government had submitted was sufficient without more to meet the court's standard requiring "some evidence" to support the president's finding that Padilla was an enemy combatant.


On May 8, 2002, Jose Padilla, a United States citizen, was arrested in Chicago by the Department of Justice on a material witness warrant issued by the Southern District of New York to enforce a subpoena summoning Padilla to testify before a grand jury. Padilla was brought to New York and detained in the custody of the Justice Department at the Metropolitan Correctional Center. When he appeared before the court, Donna K. Newman was appointed to represent him. At that time, Padilla conferred with Newman and moved to vacate the warrant. However, before the court could decide the motion, the government withdrew the warrant and disclosed to the court, ex parte, that the president had designated Padilla an enemy combatant and directed the Secretary of Defense to detain Padilla and transfer him to South Carolina. Newman filed the habeas petition on behalf of Padilla as his "next friend" after learning that she would not be permitted to visit him in South Carolina or speak with him.

Padilla was transferred to the Department of Defense and remains detained pursuant to an order of the president dated June 9, 2002 addressed to the Secretary of Defense, which sets forth the basis of the president's conclusion that Padilla is an enemy combatant: Padilla is "closely associated with al Qaeda," engaged in "hostile and war-like acts" including "preparation for acts of international terrorism" directed at this country, possesses information that would be helpful in preventing al Qaeda attacks, and represents "a continuing, present and grave danger to the national security of the United States." The declaration submitted by the government in opposition to Padilla's habeas petition stated that Padilla had been in prison in Illinois and Florida, and then had moved to Egypt, Saudi Arabia and Afghanistan, and in Afghanistan had plotted with al Qaeda to steal radioactive material within the United States to build and detonate a "dirty bomb."

The Decision

Judge Mukasey permitted Newman to act as Padilla's "next friend" based on her preexisting relationship with him and the acquiescence of his family. The court determined that Defense Secretary Rumsfeld was the proper respondent because the president charged him with detaining Padilla, but dismissed the petition against the president. In addition, Rumsfeld had sent Defense Department personnel into the Southern District to take custody of Padilla, sent him to the brig in South Carolina and continue to detain and interrogate him. Next, Judge Mukasey concluded that Padilla's detention was lawful because the president had the authority to designate an American citizen captured on American soil as an "enemy combatant" and detain him without trial. The president, in designating Padilla as an "enemy combatant," "necessarily meant that Padilla was an unlawful combatant, acting as an associate of a terrorist organization whose operations do not meet the four criteria necessary to confer lawful combatant status of its members and adherents." Judge Mukasey based his finding that the president had the authority to order detention of an unlawful combatant from the broad Joint Resolution issued by Congress, which authorized the president to use all necessary force to prevent future acts of international terrorism against the United States by the organizations or persons who planned 9/1l, and from his constitutional authority as Commander-in-Chief.

In opposing Padilla's habeas corpus petition, the government did not contest Padilla's right to bring the petition; however, it maintained that the petition should be decided only on the basis of the facts the government submitted. Judge Mukasey concluded that the language of 18 U.S.C. §§ 224l and 2243 (procedures to be followed in a § 2241 case) indicated that:

"Congress intended habeas corpus petitioners to have an opportunity to present and contest facts, and courts have the flexibility to permit them to do so under proper safeguards. Padilla's need to consult with a lawyer to help him do what the statute permits him to do is obvious." Judge Mukssey exercised discretion under the All Writs Act to direct that the government permit Padilla to consult with counsel to aid him to respond to the government's contentions.

In opposition, the government argued that the detention of enemy combatants had two main purposes, gathering intelligence about the enemy and preventing the detainee from aiding in further attacks, and affording Padilla access to counsel would jeopardize these goals. In response, the court stated that the Sixth Amendment would require any member of al Qaeda facing trial access to counsel; the government's arguments concerning the transmission of information were based on conjecture; Padilla had already met with counsel prior to his transfer to the Department of Defense; Padilla's contacts with counsel could be monitored by the government; and Padilla's lawyers were known to the court and had always conducted themselves as officers of the court.

Finally, Judge Mukasey noted that the president's determination that Padilla was an "enemy combatant" was due considerable deference, and that he had both constitutional and statutory authority to exercise his powers of Commander-in-Chief, "including the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil." Indeed, Judge Mukasey concluded, in his decision to detain Padilla as an unlawful combatant, the president was "operating at maximum authority, under both the Constitution and the Joint Resolution."

Judge Mukasey directed the government and counsel for Padilla to discuss and arrange the conditions for counsel's consultation with Padilla.

Padilla II

Following Padilla I, the government refused to work out conditions and made a motion for reconsideration of Judge Mukasey's December 4, 2002 opinion and order. In an opinion and order dated March 11, 2003, in Padilla v. Rumsfeld, 243 F. Supp. 2d 42 ('Padilla II"), Judge Mukasey reiterated his direction to the government to consult with counsel for Padilla and attempt to agree on conditions under which Padilla could consult with counsel and submit facts in support of his habeas corpus petition in response to the government.

The government continued to refuse to consult with Padilla's counsel and notified Judge Mukasey by letter "that there were no conditions to which it could agree," and reiterated its previously expressed view that "such consultation could endanger national security and prevent effective interrogation of Padilla." In light of the government's continued refusal to even discuss allowing Padilla access to counsel, Judge Mukasey granted the government's motion to certify the controlling questions of law to the Second Circuit as the "more straightforward course." The questions Judge Mukasey certified are:

  1. Is the Secretary of Defense, Donald Rumsfeld, a proper respondent in this case?
  2. Does this court have personal jurisdiction over Secretary Rumsfeld?
  3. Does the president have the authority to designate as an enemy combatant an American citizen captured within the United States, and, through the Secretary of Defense, to detain him for the duration of armed conflict with al Qaeda?
  4. What burden must the government meet to detain petitioner as an enemy combatant?
  5. Does petitioner have the right to present facts in support of his habeas corpus petition?
  6. Was it a proper exercise of this court's discretion and its authority under the All Writs Act to direct that petitioner be afforded access to counsel for the purpose of presenting facts in support of his petition?


In Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), the Fourth Circuit held that the government's submission in opposition to Yaser Esam Hamdi's habeas corpus petition was sufficient to support Hamdi's detention, stating:

"Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration is sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition."

The key difference between the facts underlying Hamdi and Padilla is that, according to the government, Hamdi, an American citizen, was captured when his Taliban unit surrendered to Northern Alliance forces in Northern Afghanistan, and he possessed an AK-47 rifle at the time of surrender. Hamdi was transported to prison in Afghanistan, moved around in Afghanistan, then sent to Guantanamo Bay and eventually to the Norfolk Naval Brig in Virginia. According to the government affidavit, Hamdi confirmed details of his capture and his status as an enemy combatant. Basing its decision on the "unchallenged fact that Hamdi was captured in a zone of active combat operations abroad," the Fourth Circuit determined that Hamdi was not entitled to challenge the facts presented by the government. The Fourth Circuit stated:

"[Further judicial inquiry is unwarranted when the government has responded to the petition by setting forth factual assertions which would establish a legally valid basis for the petitioner's detention. Because these circumstances are present here, Hamdi is not entitled to habeas relief on this basis."

The Fourth Circuit distinguished the situation in Padilla:

"We have no occasion, for example to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. See, e.g., Padilla v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002). We shall in fact go no further in this case than the specific context before us-that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces."

Judge Mukasey took pains to distinguish the factual circumstances underlying Hamdi from those present in Padilla in his December 4, 2002 decision, stating:

"I do not believe that the decision in Hamdi v. Rumsfeld 296 F.3d 278 (4th Cir. 2002), alters the balance in the government's favor, in that case, the Court of Appeals for the Fourth Circuit reversed the order of a district court directing the government to permit unmonitored access by counsel to a detainee captured in Afghanistan and held at a Navy brig in Norfolk, Virginia. The order was rendered without benefit of briefing or argument, and with little indication in the order (or elsewhere in the record for that matter) that the court gave proper weight to national security concerns.

"According to the Fourth Circuit, '[t]he peremptory nature of the [district court's] proceedings st[ood] in contrast to the significance of the issues before the court.' Id. No such access is to be granted here, and the court has had the full benefit of the government's submissions, both sealed and unsealed. Further, Padilla's situation appears to differ from Hamdi's in that he had access to counsel after his capture but before his designation as an enemy combatant, and thus no potential prophylactic effect of an order barring access by counsel could have been lost."

In Padilla II, Judge Mukasey again emphasized that the Fourth Circuit based its conclusion that Hamdi was lawfully detained on the government's establishment of a valid basis for Hamdi's detention:

"The Court in Hamdi took pains to point out that its holding was limited to 'the specific context before us - that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces.' Hamdi, 316 F.3d at 465. That wise restraint is well worth following in this case by recognizing explicitly the limits of the current holding, and thereby recognizing as well the contrast between this case and Hamdi. Unlike Hamdi, Padilla was detained in this country, and initially by law enforcement officers pursuant to a material witness warrant. He was not captured on a foreign battlefield by soldiers in combat. The prospect of courts second-guessing battlefield decisions, which they have resolutely refused to do . . . does not loom in this case."

Bennette Deacy Kramer is a partner at Schlam Stone & Dolan.

[This article is reprinted with permission from the June 2003 issue of the Federal Bar Council News. Copyright © 2003 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]