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St. Thomas Law Review

First Page

199

Document Type

Article

Abstract

On May 8, 2002, Jose Padilla, an American citizen, was arrested under a material witness warrant by federal authorities in Chicago as he disembarked a flight from Pakistan.' Padilla's arrest was subsequently announced on June 10 by no less a personage than the Attorney General of the United States, who happened to be in Russia at the time. Attorney General Ashcroft charged that Padilla was an al Qaeda operative, planning to set off a radioactive "dirty" bomb somewhere in the United States. President Bush quickly signed an order designating him an "enemy combatant." Padilla was imprisoned in New York. When, on April 3, 2006, the Supreme Court of the United States denied certiorari in the case of Padilla v. Hanft (Padilla X), it effectively held that an American citizen can be incarcerated for three years, ten months and twenty-five days without a hearing or trial. It left unanswered the question of the right of the executive branch to declare an American citizen an enemy combatant and hold him without administrative or judicial review of any kind, but it acceded to the power. By this action, the Court capitulated to the administration's position that questions of status, when national security is involved, is outside the effective power of the courts. No person outside the executive branch has yet officially been made privy to the evidence incriminating Padilla, other than the selected morsels doled out by the executive branch. And now it appears almost certain that there will never be a definitive judicial decision on the legality of his incarceration and that there will never be a hearing of any kind to determine whether the facts justified his designation as an enemy combatant. To this day, the government remains committed to preventing either of these determinations from being made. Padilla's recent criminal indictment rests on assertions of offenses other than those announced as the justification for holding him. This article reviews the several court opinions to date in Jose Padilla's case and analyzes the laws and regulations which have been cited in response to his habeas corpus applications. The case has generated twelve federal court decisions (and non-decisions) which have implicated a plethora of issues. At the heart of the controversy is the power of the executive branch to act free of judicial oversight when it asserts the power to combat terrorism, set against a citizen's right to due process. The constitutional issues include separation of powers and due process of law. Subsidiary considerations include the Non-Detention Act, the government's efforts to delay the case and to deny Padilla counsel, suppress the evidence against him, and circumvent the rules of evidence. The ultimate question is whether Jose Padilla has received due process of law under the United States Constitution. At all times it must be kept in mind that the merits of the charges against him were not at issue, but solely his right to a hearing with respect to those assertions.

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