Analysis: Padilla may be special case

WASHINGTON, Dec. 18 (UPI) -- Though a federal appeals court panel in New York ruled 2-1 Thursday that terror suspect Jose Padilla cannot be held as an "enemy combatant," his case may not be a bellwether for other detainees with the same status.

Padilla is a U.S. citizen arrested on U.S. soil, which makes his case unique among the hundreds, perhaps thousands of "enemy combatants" being detained by the United States, the vast majority of them overseas.

"Enemy combatants" are being held without lawyers and without access to U.S. courts. They are designated as "enemy combatants" by the president, usually after they are captured in battle.

The panel majority ruled that Padilla's lawyer can ask the federal courts for constitutional review of his case, and that "in the domestic context, the president's inherent constitutional powers do not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat," that federal law "prohibits the detention of American citizens without express congressional authorization" and neither the joint congressional resolution authorizing the war against terror not federal law gives the president such authority.

"The offenses Padilla is alleged to have committed are heinous crimes severely punishable under the criminal laws," the panel majority said. "Further, under those laws the executive has the power to protect national security and the classified information upon which it depends ... And if the president believes this authority to be insufficient, he can ask Congress -- which has shown its responsiveness -- to authorize additional powers."

A third judge dissented, saying the president does have the power to detain U.S. citizens arrested on U.S. soil as enemy combatants.

There was no immediate word from the Justice or Defense departments, but the government is expected to ask the full U.S. Court of Appeals for the 2nd Circuit or the Supreme Court of the United States for review.

Padilla was arrested last May at O'Hare International Airport as he tried to re-enter the country from the Middle East. The Justice Department alleges that Padilla, who was born in Brooklyn, conspired with al-Qaida leaders in a plot to introduce a "dirty" bomb -- a conventional explosive wrapped in radioactive material -- into the United States and was to scout U.S. citizens for a likely target.

Padilla has been held for 18 months without a formal charge.

The panel majority said it concluded "that Padilla's detention was not authorized by Congress, and absent such authorization, the president does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.

"As this Court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," the opinion said. "But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress."

The Padilla case is somewhat different from that of Yaser Esam Hamdi. A panel of the U.S. Court of Appeals for the 4th District in Richmond, Va., ruled that the president had a right to declare Hamdi, also a U.S. citizen, an "enemy combatant."

But Hamdi was arrested in Afghanistan fighting for the Taliban regime, while Padilla was arrested at O'Hare International Airport while trying to re-enter the country. The 2nd Circuit appeals court panel noted that Padilla was arrested in the United States, while Hamdi was arrested overseas, and said it took no position as to whether the Hamdi case was correctly decided in the 4th Circuit.

Of Saudi background, Hamdi was born in Louisiana while his father worked for an oil company, but primarily was raised in Saudi Arabia. Hamdi was transferred from the U.S. Naval Base at Guantanamo Bay, Cuba, to a naval bring in Norfolk, Va., after his interrogators realized he was a U.S. citizen.

Hamdi's petition asking for access to the U.S. courts is before the Supreme Court in Washington.

The Supreme Court already has agreed to hear argument this term in the case of 14 other detainees at Guantanamo also seeking access to U.S. courts. The 14 are foreign citizens and have not been on U.S. soil.

Also Thursday, an appeals court panel in San Francisco ruled in the case of a Libyan detainee that the Guantanamo prisoners have a right to lawyers and access to U.S. courts. This conflicts with rulings in other appeals courts and the effect of the San Francisco decision will depend on a final Supreme Court ruling.