The US Court of Appeals for the Second Circuit ruled in the case of Jose
Padilla that the US government had no inherent constitutional authority to
detain a US citizen as an "enemy combatant" on US soil outside a combat
zone. Such a decision by the executive, the court held, could only be
taken if authorised by an act of Congress, noting that present law
expressly forbids such detentions.
Later the same day, the US Court of Appeals for the Ninth Circuit ruled in
the case of a foreign national held in Guantánamo Bay that the US
government did not have unchecked power to imprison any persons, including
foreign nationals, on territory "under the control of the United States"
without recourse to judicial review or access to counsel.
Amnesty International said:
"The continuing detentions in Guantánamo Bay are a human rights scandal.
The Ninth Circuit has now added its voice to the many voices raised around
the world opposing this fundamental denial of justice and the rule of law.
"The executive need not wait for the Supreme Court's decision before
acting. President Bush has repeatedly stated his country's unswerving
commitment to the rule of law. The Second and Ninth Circuits have given
him another chance to prove it."
Jose Padilla, a US citizen arrested in Chicago in May 2002 and
subsequently designated by President Bush as an "enemy combatant", has
been held incommunicado for the past 18 months in untried military
detention in South Carolina without access to his lawyer or family. The
Second Circuit ruled that he should be released within 30 days unless
transferred to civilian custody where he could be charged with a criminal
offence. The Court said: "under any scenario, Padilla will be entitled to
the constitutional protections extended to other citizens."
The Second Circuit's ruling is a significant check on the unfettered power
claimed by the executive to detain US citizens in the United States as
"enemy combatants" in the "war against terrorism". Amnesty International
reiterates its concern that the President's removal of Padilla from the
criminal justice system had set a dangerous precedent undermining the
whole US justice system.
The appeal court's ruling is an affirmation of rights not only under US
law but also under international law. Amnesty International urges the
government not to appeal the decision.
Yesterday's Ninth Circuit decision stemmed from an appeal brought on
behalf of Falen Gherebi, a Libyan national who has been held in Guantánamo
Bay without any sort of legal process for almost two years. He is one of
more than 650 foreign nationals from around 40 countries held in the US
Naval Base there.
The Ninth Circuit held that detainees at the Guantánamo base should have
access to lawyers and the US court system, noting that it is the
"obligation of the judicial branch to ensure the preservation of our
constitutional values and to prevent the executive branch from running
roughshod over the rights of citizens and aliens alike". It concluded that
"the government's position is inconsistent with fundamental tenets of
American jurisprudence and raises serious concerns under international
law." This is the first US appeal court to issue such a ruling in the case
of the Guantánamo detainees. An appeal brought on behalf of others held in
Guantánamo is currently pending before the US Supreme Court after a lower
appeals court upheld the government's position that the US courts had no
jurisdiction over such cases.