Padilla v. Bush

Does the President have the power to designate an American citizen an enemy combatant?

            Jose Padilla, an American citizen, was arrested in Chicago's O'Hare International Airport after returning from Pakistan in 2002. He was initially detained as a material witness in the government's investigation of the al Qaeda terrorist network, but was later declared an "enemy combatant" by the Department of Defense, meaning that he could be held in prison indefinitely without access to an attorney or to the courts. The FBI claimed that he was returning to the United States to carry out acts of terrorism.

            Donna Newman, who had represented him while he was being held as a material witness, filed a petition for habeas corpus on his behalf. The U.S. District Court for the Southern District of New York ruled that Newman had standing to file the petition despite the fact that Padilla had been moved to a military brig in South Carolina.   

  However, the court also found that the Department of Defense, under the President's constitutional powers as Commander in Chief and the statutory authorization provided by Congress's Authorization for Use of Military Force, had the power to detain Padilla as an enemy combatant. The district judge rejected Newman's argument that the detention was prohibited by the federal Non-Detention Act, which states that no "citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

            On appeal, a divided Second Circuit Court of Appeals panel reversed the district court's "enemy combatant" ruling. The panel found that the Authorization for Use of Military force did not meet the requirement of the Non-Detention Act and that the President could not, therefore, declare American citizens captured outside a combat zone as enemy combatants.

Issue: Does Congress's "Authorization for use of Military Force" authorize the President to detain a United States citizen based on a determination that he is an enemy combatant, or is that power precluded by the Non-Detention Act?

It is expected that attorneys and witnesses will supplement these basic facts with research on the circumstances surrounding the case. All outside research must be properly cited, using footnote format. AT LEAST ONE SOURCE CITED HERE MUST BE A BOOK OTHER THAN A REFERENCE WORK. Attorneys’ papers missing this research will not be accepted.

Roles

attorneys for United States:                                       

attorneys for Padilla:              

Jose Padilla:                                  

President Bush:                                

Due on the day of the trial

For attorneys: A two-page essay arguing your case. You must argue for or against the constitutionality of the executive orders and the ensuing laws. Assume that Schenck broke the law – he does not contest that question – argue whether the law can stand. This paper may serve as the basis for your opening statements in class. Some outside research on the circumstances of the case will be necessary

For witnesses: A two-page essay in the form of an “affidavit,” explaining your position. You need not argue over the constitutionality of the law, just describe and explain your behavior.

Due the class meeting after the trial

For Justices: A one-page essay declaring your opinion in the matter. Present your decision and explain how you came to it.

Procedures:

8:15-8:30    Meet with your group to review the case

8:30 – 8:40      Opening arguments. Attorneys must present a three-minute minimum argument before the court.

8:40 – 8:55 (maximum)  questioning of Padilla (appellant first)

8:55 – 9:10 (maximum)  questioning of Bush (respondent first)

9:10 – 9:15      closing arguments

9:15 – 9:35      Justices deliberate

Each student will earn an essay (for the written work) and an oral presentation

grade (for in-class work).

The United States and the Holy Land

It is the 4^th of July, 1975, and President Gerald Ford has problems. The price of oil is stable, but may rise if oil-producing countries decide to clamp down again, as they did two years earlier. The PLO, led by Yasir Arafat, threatens to continue terrorist attacks with the stated goal of destroying the nation of Israel. The UN has declared that Israel must leave territories in captured in 1967, just as the PLO demands. Many small nations cite the US support of Israel as a major diplomatic irritant. The president needs to know what policy to adopt to these two nations.

           

            Members of the panel have been asked to convene on to discuss options with the president and with each other. At that time, each of you must submit a 2-3 page policy recommendation, based on “your” experiences and expertise (that of your “character.”) During the panel, each participant will deliver a 4 to 5 minute speech introducing his or her position, and then will engage in an extended dialogue about which position has the best chance of success. (All of this will be “in role.)

            All members of the class should read from the textbook  in preparation. Those not on the panel will submit their opinions on the matter, in the form of single-paragraph responses in class.

            Policy recommendations ought to be carefully argued and thoroughly supported. They ought to demonstrate clear understanding of the political and foreign policy implications of their position, and ought to be consistent with the character and politics of the assigned role. It is expected that students will research their positions using all the resources at their disposal: on-line sources, databases, and the library collection. Papers submitted without footnotes (or endnotes) and a bibliography in the proper format will receive no credit, and may not be re-written.

Roles

Henry Kissinger: 

Israeli Prime Minster Menachem Begin:  

PLO Chairman Yasir Arafat: 

William Rogers: