The broad presidential powers invoked by the Bush administration after Sept. 11, 2001, to detain suspected terrorists outside the courts is being challenged by the federal courts, the government branch the White House hoped to circumvent, says the New York Times.
Two appellate court rulings yesterday questioned crucial parts of the administration legal strategy. The Times says the rulings demonstrated powerfully the courts’ willingness to challenge procedures put in place without Congressional approval after the Sept. 11 attacks. The issue of whether the administration has gone too far will not be decided definitively until the cases reach the Supreme Court.
Kenneth Roth of Human Rights Watch said the two decisions were a serious setback for the administration’s legal approach. “The Padilla decision emphasized the Bush administration’s unilateralism versus Congress,” Roth said, referring to the in the case of a United States citizen, Jose Padilla, arrested on American soil on suspicion of terrorism. “The Ninth Circuit decision said that you can’t create a legal black hole in territory controlled by the United States,” Roth added, referring to a ruling on noncitizens captured in the Afghan war and detained at a naval base in Guantánamo Bay.
The rulings suggested that the administration might be forced to redefine its strategy, possibly by seeking Congressional authorization or by returning to established legal procedures to deal with suspected terrorists. But administration officials gave no sign that they would retreat. “Actually these rulings are an aberration,” said a senior Justice Department official. “The administration has been upheld time and time again.”
The panel’s 2-to-1 opinion in the Padilla case said the president lacked the authority to exercise such broad coercive powers against American citizens without the consent of Congress. In a San Francisco case, a 2-to-1 panel said the detention of 660 noncitizens at Guantánamo Bay without the protection of the American legal system was unconstitutional and a violation of international law.