November 13, 2014

Federal Bar Council News / Written by: Bennette Deacy Kramer

An article in the June issue of the Federal Bar Council News discussed Padilla v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002), and Padilla v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003), decided by Chief Judge Michael Mukasey, and Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), cases that concern the right of the U.S. military to detain U.S. citizens indefinitely and the amount of process due in connection with habeas corpus petitions brought by U.S. citizen detainees labeled "enemy combatants" following September 11, 2001.

On December 18, 2003, the Second Circuit affirmed in part, reversed in part, and remanded Padilla. The Second Circuit held:

"[W]e remand to the District Court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Padilla from military custody within 30 days. The government can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him. Also, if appropriate, Padilla can be held as a material witness in connection with grand jury proceedings. In any case, Padilla will be entitled to the constitutional protections extended to other citizens."

"Next Friend"

The Second Circuit affirmed Judge Mukasey's holding that Donna R. Newman, Padilla' s attorney, had standing to proceed as "next friend" on Padilla's behalf, based on her attorney-client relationship with him. The circuit court concluded that she was "perhaps the only person aware of his wishes when he was taken into custody by the Department of Defense and nothing in the record before us has called into question her suitability to pursue those wishes." Moreover, the Second Circuit noted that Newman continued to ably represent Padilla in the district court and on appeal.

The appellate court also affirmed Judge Mukasey's determination that Secretary of Defense Donald Rumsfeld was the proper respondent and the Southern District of New York had jurisdiction over him. The Second Circuit concluded that only Secretary Rumsfeld had the power to produce Padilla, because he was charged by the president under the order issued by the president dated June 9,2002 with detaining Padilla (the June 9 order is attached as Appendix A to the Second Circuit's majority opinion). It observed that Rumsfeld had sent DOD personnel into the Southern District of New York to take custody of Padilla and determined that he would be sent to the brig in South Carolina, and only Rumsfeld could inform the president that further restraint of Padilla as an enemy combatant was no longer necessary. Long arm jurisdiction under the New York long arm statute was proper, the Second Circuit continued, because Rumsfeld had engaged in purposeful activity in New York by sending DOD personnel into the Southern District of New York to "(1) remove Padilla from the MCC, (2) detain Padilla, and (3) transfer him to South Carolina. Most importantly Padilla's status was transformed in the Southern District-he arrived in New York a material witness in a grand jury investigation related to the September 11 attacks and departed an enemy combatant." Presidential Power

Next, the Second Circuit turned to whether the president had the power to detain United States' citizens seized in the United States. Judge Mukasey had concluded that the Joint Resolution issued by Congress was an express congressional authorization under 18 U.S.C. § 4001(a), which prohibits the detention of American citizens absent a congressional authorization. The circuit court examined the scope of the president's inherent power to order such a detention, and in the event that power was insufficient whether Congress had authorized the detention of an American citizen such as Padilla. The Second Circuit emphasized that "our review is limited to the case of an American citizen arrested in the United States, not on a foreign battlefield or while actively engaged in armed conflict against the United States," explicitly distinguishing the factual circumstances underlying Hamdi. The Second Circuit examined the three categories of presidential power established by the Supreme Court in Youngstown Sheet "& Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863 (1952). As the Second Circuit explained, the president's authority is at its maximum when he acts pursuant to an express or implied authorization from Congress. Second, without a congressional grant or denial of authority, the president can rely only on his own independent powers, but the president's powers may overlap with those of Congress. Finally, where the president acts in contradiction to the express or implied will of Congress, the president's power is at its lowest ebb.

While great deference is given to the president's exercise of his authority as commander-in-Chief, the Second Circuit did not agree with the government that the president could usurp the powers allocated to Congress in times of "grave national security threats or war, whether declared or undeclared." The Constitution, in Article I, § 9, cl. 2, allocates to Congress the power to define and punish offenses against the law of nations by explicitly providing for the suspension of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it." Moreover, the Second Circuit noted, the Third Amendment grants Congress the power to make decisions as to the nature and scope of military intrusions into civilian life. Thus, the Second Circuit concluded that "while Congress–otherwise acting consistently with the Constitution–may have the power to authorize the detention of United States citizens under the circumstances of Padilla's case, the President, acting alone, does not."

The Second Circuit distinguished Ex parte Querin, 317 U.S. 1 (1942), concerning German soldiers arrested on United States soil during World War II, because the decision in Querin to uphold military jurisdiction arose from express congressional authorization of the use of military tribunals to try combatants who violated the laws of war. Moreover, while the defendants in Querin admitted they were German soldiers, Padilla will dispute his designation as an enemy combatant.

Non-Detention Act

The Second Circuit next addressed the actions Congress had taken pursuant to its powers under the Constitution. The Non-Detention Act, enacted in 1971, provides: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." 18 U.S.C. § 4001(a). The Second Circuit read Section 4001(a) to prohibit all detentions of citizens, which was supported by the legislative history, describing the primary motivation for the passage of the Non-Detention Act arising from the detention of Japanese-American citizens during World War II. In sum, the Second Circuit stated, "we conclude that the Act applies to all detentions [including military detentions] and that precise and specific language authorizing the detention of American citizens is required to override its prohibition."

Finally, the Second Circuit disagreed with the district court that the Joint Resolution conferred authority upon the president for detention of American citizens seized on American soil and not actively engaged in combat. The Second Circuit found no language in the Joint Resolution authorizing detention, concluding that "[t]he plain language of the Joint Resolution contains nothing authorizing the detention of American citizens captured on United States soil, much less the express authorization required by section 4001(a) and the 'clear,' 'unmistakable' language required by [Ex parte] Endo," 323 U.S. 283(1944). Further, the Second Circuit refused to infer a power of detention from the Joint Resolution.

Similarly, the Second Circuit refused to find authorization for Padilla's detention in 10 U.S.C. § 956(5), which allows the use of appropriated funds for "expenses incident to the maintenance, pay and allowances of prisoners of war, other persons in the custody of the Army, Navy or Air Force whose status is determined by the Secretary concerned to be similar to prisoners of war, and persons detained in the custody of [the Armed Services pursuant to presidential proclamation." The Second Circuit found that Section 956(5) "authorizes nothing beyond the expenditure of money" in regard to American citizens seized off the battlefield.

In dissent, Judge Wesley would have affirmed Chief Judge Mukasey's holding that the president had the power to detain Padilla. Judge Wesley believed that the president, as commander-in-chief, had inherent authority "to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens." Second, he thought that, through the Joint Resolution, Congress had given the president specific and direct authorizations to take the actions he had to detain Padilla. Judge Wesley concurred with the remainder of the majority opinion.


On January 8, 2004, the Supreme Court granted certiorari in the Hamdi case, which will be argued in April, with a decision expected by the end of the Court's current term in June.

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

[This article is reprinted with permission from the February 2004 issue of the Federal Bar Council News. Copyright © 2004 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]