Court Backs Dirty Bomb Plotter
A pair of judges on the Second U.S. Circuit Court of Appeals have ordered the Pentagon to release enemy combatant Abdullah Al-Muhajir, né Jose Padilla, from military custody. Padilla, a U.S. citizen, was picked up in May 2002 at O'Hare International Airport after flying back from Pakistan; the following month, Attorney General John Ashcroft announced and explained the arrest:
On several occasions in 2001, he met with senior al Qaeda officials. While in Afghanistan and Pakistan, Al Muhajir trained with the enemy, including studying how to wire explosive devices and researching radiological dispersion devices. Al Qaeda officials knew that . . . as a citizen of the United States holding a valid U.S. passport, Al Muhajir would be able to travel freely in the U.S. without drawing attention to himself. . . .
In apprehending Al Muhajir as he sought entry into the United States, we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive "dirty bomb."
In today's decision, Padilla v. Rumsfeld (link in PDF form), a split three-judge panel holds that "clear congressional authorization is required for detentions of American citizens on American soil," and that the September 2001 declaration of war does not constitute such authorization.
Under the court's order, the Defense Department must release Al-Muhajir from military custody within 30 days. The court leaves open the possibility that he can be held in the criminal-justice system--either as a suspect or as a material witness--but he "will be entitled to the constitutional protections extended to other citizens."
One can expect the government to appeal the ruling, either to the full Second Circuit or to the Supreme Court. But perhaps it's also worth asking Congress to take up this issue. Some lawmakers, notably Sen. John Edwards, a presidential candidate, have been championing the civil liberties of would-be terrorists, as if setting off a dirty bomb in an American city were a matter of no more gravity than an ordinary mugging or embezzlement. Why not force all members of Congress to go on record for or against this proposition?
Meanwhile, the notoriously liberal Ninth Circuit, in Gheredi v. Bush, holds that noncitizen terrorists at Guantanamo Bay also are entitled to lawyers. Given the Ninth Circuit's batting average in the Supreme Court, this preposterous ruling seems highly unlikely to stand.
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