The horrific terrorist attacks on September 11th 2001 generated several changes within the United States. Primarily, it changed U.S. citizens’ perceptions and understandings that the U.S. is not immune from terrorist attacks. On an individual level, it changed the way U.S. citizens travel, as demonstrated by more stringent security at airports and other transportation venues, such as subway screening. Additionally, the terrorist acts affected U.S. laws focusing on national security. The United States Government determined that changes to current laws were needed to protect the United States from another tragedy like September 11. These adaptations have caused concern that the government may have exceeded their breadth of authority and led to a key question - how far can and should the government go to protect citizens from another attack? The apprehension of an American citizen in Chicago, declared an enemy combatant by the government, addresses the primary issue of whether a U.S. citizen detained on American soil can be held without trial in the name of the war on terrorism.

The United States Constitution affords definitive and manifest rights to United States citizens. An imperative right is under the Sixth Amendment, which grants a citizen the right to counsel when charges have been filed against him or her. Another key right is under the Fourteenth Amendment, which grants a citizen the right to due process of law. Customarily, U.S. citizens may not be detained without being charged for a crime. However, this has not been the case for Jose Padilla.

The government has asserted that Padilla is an enemy combatant and as such is not entitled to an attorney and may be detained without any charges filed against him. An enemy combatant is defined in the Joint Doctrine for Detainee Operations as an additional classification of detainees who through, their own conduct, are not entitled to the privileges and protection of the Geneva Conventions.

Jose Padilla was born in New York City. After his father died when Padilla was four years old, his mother moved the family to Chicago. As a teenager, Padilla joined a street gang, the Latin Kings. Padilla’s first run in with the law was when he was 14. Allegedly, he and six other juveniles robbed and viciously attacked two members of a rival gang, one who died from his injuries. Padilla was convicted of the juvenile equivalent to aggravated assault and armed robbery. After his release from the juvenile detention center, Padilla moved to Florida. In October 1991, he was arrested for brandishing a gun out of his car window during a road-rage incident. In 1996, Padilla married his girlfriend, Cherie Stultz.

It is unclear when Padilla’s curiosity towards Islam matured. Some speculate he became inquisitive while in jail and others state that one of his fellow Taco Bell employees, who was Muslim, influenced him. Subsequently, Padilla informed his coworkers at Taco Bell that he and has wife had converted to Islam and his name was now Abdul al Muhajir. According to Seamus McGraw, an author for Court TV’s Crime Lab, this name is commonly associated with Muslim warriors.

Padilla’s wife filed for divorce in 2000 and informed the court that she had not seen him since 1998 when he had moved to Cairo. Although Padilla’s whereabouts and actions are indeterminate from this point forward, the United States government at this time became interested in Padilla. The government maintains that he attended an al Qaeda training camp in Afghanistan. They also claim he spent time in Pakistan where he was trained concerning radiological weapons and wiring bombs. The government’s attention and curiosity in Padilla grew in February 2002 when he tried to get another passport from a U.S. Consulate in Pakistan. Padilla claimed he had lost his.

In June 2002, Abu Zabaydah, the senior deputy to al Qaeda leader Osama bin Laden, was apprehended in Pakistan. Zabaydah divulged information about an American recruit to al Qaeda. Zabaydah stated he could not identify the American’s name but knew that he had planned to manufacture and detonate a radiological bomb in the United States. Zabaydah stated that he directed the American to operatives in Pakistan to help him carry out his attack. Based on this information and Padilla’s previous actions, Padilla was placed on a watch list.

Jose Padilla, who maintained his United States citizenship, was apprehended by federal agents on May 8, 2002 at Chicago O’Hare Airport. Padilla had just arrived from Pakistan and was detained when he stepped off the plane. In New York, U.S. District Court Judge Michael Mukasey authorized the material witness warrant. Padilla was brought to New York before Judge Mukasey, who appointed Padilla an attorney. On June 9, 2002 President Bush declared Padilla an enemy combatant and ordered him to be detained in a military brig in South Carolina. The next day, Attorney General John Ashcroft stated, “We have captured a known terrorist who was exploring a plan to build and explode a radiological device or ‘dirty bomb’ in the United States.”

Jose Padilla was detained in South Carolina as an enemy combatant from June 2002 till January 2006. During this time, Padilla did not have any contact with his family. According to Padilla’s petition for habeas corpus, he was not allowed to meet with nor communicate with his attorney from June 9, 2002 to March 2004. Padilla’s procedural history is very extensive and demonstrative of the importance of the issue. Please see the Padilla timeline for a comprehensive review of the procedural history of this case.

In June 2002, Donna Newman, Padilla’s appointed attorney, filed a writ of habeas corpus on his behalf. She filed the petition in New York against President Bush, Defense Secretary Donald Rumsfeld, Attorney General John Ashcroft and Commander M.A. Marr, the warden of the military brig at Charleston. The government responded arguing, among other things, that the court in New York no longer had jurisdiction because Padilla had been moved to South Carolina. The jurisdictional challenge was finally resolved in 2004, after numerous appeals, when the United States Supreme Court ruled that the case was improperly filed in New York and should be refilled in South Carolina.

Newman filed another writ for habeas corpus in South Carolina District Court. This time she named Commander C.T. Hanft as respondent. Commander Hanft, a Naval Officer, was Padilla’s custodian at the brig. The district court ordered Commander Hanft to release Padilla from his custody within 45 days. The government appealed to the Fourth Circuit Court of Appeals who reversed the district court’s ruling. The Court of Appeals stated that, “The Congress of the United States, in the Authorization for Use of Military Force Joint Resolution, provided the President all powers necessary and appropriate to protect American citizens from terrorist acts by those who attacked the United States on September 11, 2001.” Padilla v. Hanft, 423 F.3d 386 (2005). They went on to hold that “Those powers include the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the Taliban regime…entered the United States for the avowed purpose of further prosecuting that way by attacking American citizens and targets on our own soil…” Id. Therefore, the Court of Appeals refused to transfer Padilla.

On November 23, 2005 Padilla was indicted by a Miami federal grand jury on criminal charges that he conspired to “murder, kidnap and maim” people overseas. The three charges included: conspiracy to murder U.S. nationals, conspiracy to provide material support to terrorists, and providing material support to terrorists. The charges did not include the earlier allegations that he planned to build and detonate a dirty bomb in the United States. Attorney General Alberto Gonzales stated, “Padilla’s previous status as an ‘enemy combatant’ has no legal ramifications for the criminal charges.”

On January 4, 2006, the Supreme Court ordered, at the request of the government, Padilla transferred from military custody to stand trial in Miami, Florida. Padilla’s attorney argued that the Court should wait to transfer Padilla until they had ruled on the issue concerning the president’s authority to detain enemy combatants. On January 13, 2006, the Supreme Court met to determine if the case is moot or to define the extent of presidential power over U.S. citizens who are detained within the United States on suspicion of terrorist activity. They have not released their decision as of yet.

Padilla was arraigned on January 12, 2006. He pleaded not guilty to all charges against him. The judge denied his bail because of the seriousness of the charges. Padilla’s trial is set to begin in the fall of 2006. Four other men were charged with Padilla: Adham Amin Hassoun, Kifah Wael Jayyousi, Mohamed Hesham Youssef, and Kassem Daher.

Padilla’s case is not unique. There have been two other enemy combatants, Yaser Hamdi and Ali Saleh Kahla-al-Marri. Hamdi, a U.S. citizen born in Louisiana, spent most of his life overseas. He was captured in December 2001 in Afghanistan. The government contended that he was armed and was traveling with a military unit of the Taliban. He was held at Guantanamo Bay. However, he was later transferred to a military brig in Norfolk, Virginia and then subsequently to South Carolina. Hamdi raised the same issues as Padilla. The Supreme Court of the United States affirmed the right of the president to detain citizens as “enemy combatants” during a military conflict but held that such detainees could contest the merits of their captivity before a neutral fact-finder. Hamdi vs. Rumsfeld, 542 U.S. 507 (2004) Hamdi was released in the fall of 2004. The terms of his release mandated that he had to renounce his United States citizenship. Additionally, he is not permitted to travel to Afghanistan, Iraq, Israel, Pakistan, Syria, the West Bank or Gaza. And finally, for the next fifteen years, he has to report any intention he may have to travel outside Saudi Arabia.

The second enemy combatant, al-Marri, was arrested in December 2001. Contrary to the other enemy combatants, he is not an U.S. citizen (he is from Qatar and arrived in the U.S the day before the terrorist attacks on September 11, 2001) and he was indicted at that time for credit card fraud and lying to the FBI. He was declared an enemy combatant on June 23, 2003. al-Marri is currently still being detained at the South Carolina military brig. He was prohibited for sixteen months to meet with his attorney but has since met with an attorney and has two cases pending. One case is challenging his treatment and the second concerns the legality of his detention.

There has been much public outcry over the Padilla case and the issues concerning enemy combatants. There have been several harsh critics concerning the government’s actions towards enemy combatants. Several organizations have filed briefs on behalf of Padilla. For example, the American Bar Association filed a brief as Amici Curiae in support of Padilla. They argued, “Padilla must have the opportunity to challenge the basis for detention; he must have access to counsel to assist him in making that challenge; and the government must substantiate the basis for its detention under a meaningful standard of review.” The American Bar Association further asserted, “Anything less would be inconsistent with this nation’s core principles.” However, there have been some arguments defending the government’s actions. Paul Rosenzweig from the Heritage Foundation stated, “The information regarding [Padilla and Hamdi’s] intention was based on intelligence and military sources and not suitable to be aired in a conventional criminal-court setting.” He went on to assert, “History has taught us that during wartime, executive flexibility is not merely desirable, but essential.”