Nature of the Case
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Facts
Jose Padilla, (D) an American citizen, flew on his American passport from Pakistan, via Switzerland, to Chicago’s O’Hare International Airport. There he was arrested by FBI agents pursuant to a material witness warrant issued by the Chief Judge of the Southern District of New York in connection with a grand jury investigation of the terrorist attacks of September 11. Padilla carried no weapons or explosives. On June 9, the government notified the court ex parte that (1) it wished to withdraw its subpoena and (2) the President had issued an Order (the 'June 9 Order') designating D as an enemy combatant and directing Secretary Rumsfeld to detain him. Chief Judge Mukasey vacated the warrant, and D was taken into custody by Department of Defense (DOD) personnel and transported from New York to the high-security Consolidated Naval Brig in Charleston, South Carolina. For the past eighteen months, D has been held in the Brig in Charleston. He has not been permitted any contact with his counsel, his family or any other non-military personnel. During this period, he has been the subject of ongoing questioning regarding the al Qaeda network and its terrorist activities in an effort to obtain intelligence. D was born in New York, was convicted of murder in 1983, and remained incarcerated until his eighteenth birthday. In 1991, he was convicted on a handgun charge and again sent to prison. He moved to Egypt in 1998 and traveled to several countries in the Middle East and Southwest Asia between 1999 and 2000. During this period, he was closely associated with known members and leaders of al Qaeda. While in Afghanistan in 2001, Padilla became involved with a plan to build and detonate a 'dirty bomb' within the United States and went to Pakistan to receive training on explosives from al Qaeda operatives. There he was instructed by senior al Qaeda officials to return to the United States to conduct reconnaissance and/or other attacks on behalf of al Qaeda. He then traveled to Chicago, where he was arrested upon arrival into the United States on May 8, 2002. Notwithstanding D’s extensive contacts with al Qaeda members and his actions under their direction, the government does not allege that D was a member of al Qaeda. Eventually, a lawyer filed a habeas writ for D. The government moved to dismiss D’s habeas petition on the grounds that Newman lacked standing to act as D’s next friend, that Secretary Rumsfeld was not a proper respondent, and that, in any event, the District Court lacked personal jurisdiction over him. The District Court allowed Newman to bring the habeas petition. It also held that Rumsfeld was the proper respondent to the writ. The court held that the Constitution and statutory law give the President authority to detain American citizens as enemy combatants but that D would be entitled to consult with counsel to pursue his habeas petition 'under conditions that will minimize the likelihood that he [could] use his lawyers as unwilling intermediaries for the transmission of information to others'; (5) D could present facts and argument to the court to rebut the government’s showing that he was an enemy combatant; and (6) the court would 'examine only whether the President had some evidence to support his finding that D was an enemy combatant and whether that evidence has been mooted by events subsequent to his detention.' The government then moved for certification of the issues which it had lost.
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