Government Arguments before U.S. Supreme Court

The Case of Jose Padilla: Imprisonment Without Trial or Charges

Revolutionary Worker #1239, May 9, 2004, posted at

"Today the government asks this court for a broad ruling that would allow the president unlimited power to imprison any American anywhere at any time without trial simply by labeling him an enemy combatant."

Jennifer Martinez, attorney for Jose Padilla, arguing before the U.S. Supreme Court, 4/28/04

"If we go to all these other countries to promote democracy -- hello? -- why can't we practice it at home? I'm like, `Give me proof.' If my son did something, charge him. Give him his day in court."

Ortega Lebron, Jose Padilla's mother

On April 28, the U.S. Supreme Court heard oral arguments in the cases of Jose Padilla and Yaser Hamdi--U.S. citizens who have been held in military custody for two years since President Bush declared them "enemy combatants." The previous week, the Supreme Court heard arguments on behalf of prisoners being held in the concentration camp at the U.S. base at Guantánamo, Cuba. (This article focuses on the Padilla case. For information on the cases of Hamdi and the prisoners at Guantánamo, see "Dangerous Presidential Powers: From Citizen to Enemy Combatant" by C. Clark Kissinger in RW #1236 and online at

Padilla is the first American citizen arrested on U.S. soil who has been stripped of his legal rights and held indefinitely without charges solely on the order of the president. There is a great deal at stake in the Padilla case (and in the cases of Hamdi and the Guantánamo detainees). As C. Clark Kissinger pointed out, "The government is moving quickly toward a more fascistic form of rule under which persons, including citizens, can be held incommunicado indefinitely, without charges or judicial review, based solely on the president's decision."

Labeled as "Enemy Combatant" and Thrown into the Brig

Born in Brooklyn and raised in Chicago, Padilla is a young Puerto Rican man who was a gang member as a youth and ended up in prison--where he converted to Islam. The U.S. government claims he moved to Egypt in 1998 and later traveled to Pakistan, Afghanistan, and Saudi Arabia. On May 8, 2002, he was arrested by the FBI at O'Hare International Airport in Chicago upon arrival from Pakistan by way of Switzerland.

The government did not announce Padilla's arrest until a month later. Meanwhile, he was transferred to New York and held as a "material witness." Since 9/11, the government has often used material witness warrants to detain people without charges.

Donna Newman was appointed by the court to defend Padilla. She told the New York Times:"When I first met him, he was brought out in a three-piece suit -- shackles, leg irons and a metal belt. I was handed an affidavit alleging that he was involved in a [terrorist] plot -- according to informants." The affidavit itself noted that "the informants were unreliable." Newman immediately filed legal papers demanding Padilla's release.

On June 9, 2002--two days before Padilla was to appear in court for the motion to free him by dropping the material witness warrant--President Bush declared Padilla an "enemy combatant." The military snatched him up from the Metropolitan Correctional Center in New York City and threw him into the Naval brig in Charleston, South Carolina. Since then Padilla has had almost no contact with the outside world.

Newman petitioned for a writ of habeas corpus on Padilla's behalf. (A writ of habeas corpus is an order for a detainee to be brought before a court to determine whether the person is being held legally.) The Bush administration filed a motion to dismiss the petition--along with a letter from Michael H. Mobbs, who has the title "Special Advisor to the Under Secretary of Defense for Policy." The Mobbs declaration presented the government's story that Padilla was planning to set off a radioactive "dirty bomb" on the orders of al-Qaida--and that this justified the president's order to name Padilla as an "enemy combatant" and hold him under military detention, without any further contact with his lawyer.

The government also submitted a declaration from Vice Admiral Lowell E. Jacoby, director of the Defense Intelligence Agency. Jacoby argued that the interrogators needed to develop "a relationship of trust and dependency" so that Padilla would come to understand "that he is reliant on his interrogators for his basic needs and desires." In other words, Padilla had to be denied contact with his lawyer in order to deny him any hope other than cooperation with military interrogators.

The federal district court came out with an unprecedented ruling--saying that the president did indeed have the power to detain U.S. citizens designated as enemy combatants and that the only issue the court would consider is whether the government had "some evidence" to justify this designation.

The 2nd Circuit Court of Appeals reversed the district court and ruled, among other things, that the president does not have the power under the constitution to detain a U.S. citizen seized in this country, away from a combat zone; that the 1971 Non-Detention Act prohibits the detention of U.S. citizens without Congressional authorization; and that the September 15, 2001, joint resolution by Congress that authorized military action against al-Qaida did not constitute such an authorization. The Bush administration appealed this ruling to the U.S. Supreme Court.

Because-We-Say-So Doctrine

The Bush administration's arguments before the Supreme Court on April 28 were quite blatant and frightening. What the administration put forward points toward a martial-law situation--where the executive branch, under the justification that it is on a "war footing," has unlimited power to imprison people alleged to be "enemy combatants."

Padilla's attorney Newman called the government's arguments the "because-we-say-so doctrine."

The Bush administration lawyer, Paul Clement, argued that the September 11, 2001, resolution by Congress authorizing the president to use "all necessary and appropriate force" against al-Qaida gave the executive branch the power to make "discretionary judgments in finding what is the necessary appropriate force."

In other words, the executive branch claims that it has a blank check to do anything it deems necessary-- including indefinite detentions of U.S. citizens--even though Congress's "Authorization of Force" resolution said nothing about such detentions.

Clement declared that neither Congress nor the courts can put any limits on such executive power. Justice Kennedy at one point said to Clement, "I'm taking away from the argument the impression.that you think there is a continuing role for the courts to examine the reasonableness of the period of detention." Clement quickly corrected him: "Well, I wouldn't take that [impression] away, Justice Kennedy."

Justice O'Connor asked Clement why "a neutral decision maker of some kind" could not determine whether a detainee is being legally held. Clement said that "for all intents and purposes," the government's own process of deciding who should be held was "a neutral decision maker."

When Justice Ginsburg asked why detainees should not be given a forum to argue for themselves, Clement answered, "The interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake." This outrageous statement comes from an administration that has openly said that it is denying Jose Padilla contact with lawyers so that he would have no hope other than cooperation with his interrogators.

These kinds of arguments by the Bush administration are a stark departure from the way this country's legal system has historically operated and from the system of "checks and balances" between the executive, judicial, and legislative branches that has supposedly been a fundamental part of "American democracy." And this is raising concern even within some sections of the U.S. ruling class. The New York Times,for example, editorialized: "The government sets a frighteningly low standard for itself, saying it needs only `some evidence' that a citizen has `associated' with a terrorist organization `bent on hostile acts' to hold him indefinitely."

An amicus brief (legal argument by interested parties not directly involved in a Supreme Court case) from various federal and district court judges and attorneys said, "[We] believe the Executive's position in this case threatens the basic `rule of law' on which our country is founded, the role of the federal judiciary and the separations in our national government, and fundamental individual liberties enshrined in our Constitution."

The Bush administration's reply is that the "war on terrorism" justifies everything it is doing. They essentially argue: Trust us, we have your safety in mind. We are using these powers to prevent future terrorist attacks and protect the safety of the American people.

This rationale for a police state comes from a president and an administration that--as the whole world now knows--outright lied about "weapons of mass destruction" in order to justify the bloody war and occupation in Iraq.

And there are indications that the Bush administration threw flimsy allegations against Padilla to grab him--and have held him incommunicado since then to hide what it had done. The New York Times pointed out: "Attorney General John Ashcroft announced Mr. Padilla's capture from Moscow on June 10, 2002, saying that an `unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb' had been disrupted--an attack with the potential to cause `mass death and injury.' Later, other officials emphasized that the `unfolding terrorist plot' had not progressed beyond `loose talk,' as Paul D. Wolfowitz, the deputy secretary of defense, put it."

Michael Mobbs--the Bush official whose declaration to the court argued for denying Padilla the right to a lawyer--had cited intelligence information that supposedly implicated Padilla with involvement in al-Qaida and a "dirty bomb" plot. These claims were based mainly on information the government claims it obtained from alleged al-Qaida leader Abu Zubaydah--who is being interrogated (and perhaps tortured) in U.S. custody in a secret location overseas. But as the New York Times reported, Zubaydah did not even identify Padilla and was forced to give other statements that have proven false.


These moves to expand the government's executive power is an extremely dangerous development for the people. And the dangers will be greatly accelerated if the U.S. Supreme Court now upholds the actions and assertions of this administration.