December 04, 2009 | Case

Brief: Courts Should Not Impede President’s Ability to Obtain Wartime Advice

Judicial Watch filed an amicus curiae brief in the United States Court of Appeals for the Ninth Circuit arguing for the reversal of a lower court’s decision allowing to go forward a suit against former Bush Deputy Assistant Attorney General John Woo filed by a Yale Law School human rights clinic on behalf of “dirty bomber” Jose Padilla.

Padilla, who is currently serving a seventeen-year sentence in federal prison after being convicted of providing material support to terrorists, among other criminal offenses, maintains that his constitutional rights were violated when President Bush designated him as an “enemy combatant” and ordered his detention by the U.S. military, allegedly at the recommendation of Woo.  Padilla is asking the court to award him monetary damages for these alleged violations of his rights.

According to Judicial Watch’s brief, filed on November 28, 2009, the U.S. District Court erred by refusing to dismiss this lawsuit, giving rise to serious concerns about “separation of powers”:

“Judicial Watch’s primary concern is that the District Court failed to consider adequately the weighty separation of powers concerns that arise whenever the Judicial Branch seeks to involve itself in the presidential decision-making process.  These separation of powers concerns are all the more significant when the decision-making process involves national security and the exercise of the President’s powers as Commander in Chief.  If the decision is allowed to stand, it would represent an unprecedented expansion by the Judicial Branch into the President’s ability to receive wartime advice from his advisors.”

Padilla, an American citizen, moved to Egypt in 1998 and spent the next several years traveling throughout the Middle East.  According toU.S.intelligence officials, Padilla was introduced to senior Osama bin Laden lieutenant Abu Zubaydah in 2001.  He then received training from Al Qaeda operatives, returning to the United States allegedly to conduct reconnaissance and to build and detonate a “radiological dispersal device” (also known as a “dirty bomb”) within the United States, possibly in Washington, D.C.  On May 8, 2002, authorities arrested Padilla at Chicago’s O’Hare International Airport.  On June 9, 2002, President Bush designated Padilla an “enemy combatant” and transferred him to a military prison.  Specifically, President Bush determined that Padilla “posed a continuing, present and grave danger to the national security of the

United States,” and that “detention of Mr. Padilla is necessary to prevent him from aiding Al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens.”