Federal Judge Orders 'Enemy Combatant' Jose Padilla Charged Or Released

R.A. Hettinga rah at shipwright.com
Mon Feb 28 18:15:44 PST 2005



Federal Judge Orders 'Enemy Combatant' Jose Padilla Charged Or Released

Mon Feb 28, 6:08 PM ET

 A federal judge in Spartanburg has ordered that an American citizen held
as an enemy combatant in a Navy brig in Charleston should be released.


 U.S. District Judge Henry F. Floyd ruled Monday that the president of the
United States does not have the authority to order Jose Padilla to be held.

 "If the law in its current state is found by the president to be
insufficient to protect this country from terrorist plots, such as the one
alleged here, then the president should prevail upon Congress to remedy the
problem," he wrote.

 In the ruling, Floyd said that three court cases that the government used
to make its claim did not sufficiently apply to Padilla's case.

 Floyd wrote that, in essence, "the detention of a United States citizen by
the military is disallowed without explicit Congressional authorization."

 Floyd wrote that because the government had not provided any proof that
the president has the power to hold Padilla, he must reject the
government's claim of authority.

 "To do otherwise would not only offend the rule of law and violate this
countrys constitutional tradition, but it would also be a betrayal of this
nations commitment to the separation of powers that safeguards our
democratic values and individual liberties," he wrote.

 "For the court to find for [the U.S. government] would also be to engage
in judicial activism. This court sits to interpret the law as it is and not
as the court might wish it to be. Pursuant to its interpretation, the court
finds that the President has no power, neither express nor implied, neither
constitutional nor statutory, to hold [Padilla] as an enemy combatant,"
Floyd wrote.

 As a result, Floyd ordered that Padilla be charged with a crime or
released within 45 days.

 The government is expected to appeal the decision.

R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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