News Release

July 30, 2003

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Executive Branch May Not Unilaterally Detain U.S. Citizens Without Charge
Six diverse groups file amicus brief challenging Jose Padilla's detention

WASHINGTON, D.C. - The Cato Institute, joined by five philosophically diverse public policy organizations, has filed a friend-of-the-court brief in Padilla v. Rumsfeld, challenging the Bush administration's indefinite detention of a U.S. citizen who has not been charged with any crime or permitted to see an attorney. The case is now pending before the U.S. Court of Appeals for the Second Circuit in New York.

Jose Padilla allegedly plotted to detonate a "dirty bomb." He was captured not on the battlefields of Afghanistan or Iraq, but at Chicago's O'Hare Airport, then held incommunicado in a military brig for more than a year.

The brief argues that "Congress has explicitly prohibited any detention of American citizens not grounded in statute, and no statute authorizes Padilla's detention." More than 30 years ago Congress passed Title 18 §4001 of the U.S. Code, which states: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Today, we have had little input from Congress -- no declaration of war and no suspension of habeas corpus, which is the constitutional directive that government justify its continued detentions.

The brief notes that Congress has taken two actions. First, it enacted the PATRIOT Act, which authorizes the detention for seven days of non-citizens suspected of terrorism. After that, they have to be released or charged, unless the attorney general certifies every six months that they are a security risk. Could it be that Congress intended for non-citizens to have more rights than citizens? Not likely. Second, Congress passed a resolution authorizing the president to use all necessary force against the 9/11 terrorists. That resolution says nothing about domestic detentions, just the use of force.

"When the executive, legislative, and judicial branches jointly establish and agree on the framework, the potential for abuse, while not eliminated, is significantly diminished," said Robert A. Levy, Cato senior fellow in constitutional studies. "But when only the executive acts, the foundations of a free society can too easily erode. Padilla may deserve the treatment he is receiving -- perhaps worse. That is not the point, however. U.S. citizens are not presumed guilty until proven innocent. Nor can they be stripped of any chance to prove their innocence by command from the executive branch."

Timothy Lynch, director of Cato's Project on Criminal Justice, noted: "When Americans lose their liberty and are taken into custody, they have the right to retain an attorney to prepare a legal defense. An impartial judge, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution."

The six groups filing the amicus brief are the Cato Institute, the Center for National Security Studies, the Constitution Project, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute.