03 March 2005
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Rocky Mountain News
March 2, 2005
The most egregious assertion of power in the Bush administration's war on terror was the president's right to jail any American indefinitely without trial. The president merely had to designate that person an "enemy combatant." That unwelcome unilateral expansion of presidential prerogatives was used only twice - on Yaser Esam Hamdi, a U.S.-born Saudi; and Jose Padilla, an American petty criminal.
Hamdi was captured in Afghanistan in 2001, sent to Guantanamo Bay, Cuba, and then shipped to a Navy brig when the feds learned he could claim U.S. citizenship. Last June, the Supreme Court ruled that the administration had to either try him or release him, and even though Hamdi, now 24, was presumably so dangerous that he had to spend over two years in solitary, the administration tamely sent him back to his parents in Saudi Arabia on the grounds that he no longer had any information to give.
Padilla, now 34, wasn't so lucky. Even though an appeals court had ruled that Padilla, too, should be tried or released, the Supreme Court said his case should have been filed in South Carolina instead of New York. Now a federal judge in South Carolina, Henry Floyd, has ruled and dealt, one hopes, a fatal blow to the assertion of an unchecked presidential power to jail a citizen indefinitely and with no access to due process - a judge, lawyer, habeas corpus, charges, a trial, all the basic constitutional safeguards.
"The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant," Floyd wrote.
Copyright 2005, Rocky Mountain News.
For more on this issue see:
U.S. Citizen Jose Padilla : Imprisoned Without Trial for 2 Years and 269 Days by our Government
Jose Padilla: Read: Judge Floyd's Decision : pdf format:
U.S. District Judge Henry F. Floyd ruled that the president of the United States does not have the authority to order Jose Padilla to be held.
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