Indefinite Detention of Enemy Combatant, Padilla v. Hanft (amicus) 

In 2002, Jose Padilla, who is a United States citizen, was arrested at O’Hare International Airport by FBI agents executing a material witness arrest warrant. Padilla was transferred to New York, where he was held as a material witness in connection with a grand jury investigation of the terrorist attacks of September 11, 2001. In June, the President had issued an order naming Padilla an “enemy combatant” and transferring his custody to the Department of Defense, which immediately seized Padilla and, without notice to counsel, transported him to a high security military brig in South Carolina. Padilla’s appointed counsel immediately filed a habeas corpus petition on his behalf. For years, the government filed no charges against Padilla, but held him incommunicado, not even allowing visits from his attorney. The case eventually reached the Supreme Court, which held that Padilla had filed his habeas petition had been filed in the wrong court.

In 2004, Padilla’s counsel filed a new habeas corpus petition in the U.S. District Court for South Carolina. The District Court ruled that Padilla’s detention had not been authorized by Congress and was therefore unlawful. The government appealed to the Fourth Circuit. Our amicus brief in support of Padilla argues that the indefinite military detention of Padilla violates the core constitutional principles of due process of law and the supremacy of civilian authority over military.  On September 9, 2005, the Fourth Circuit Court of Appeals reversed the trial court's decision and held that the president was authorized to detain enemy combatants under the Authorization of Use of Military Force passed by Congress in the wake of September 11.  Padilla then filed a petition for certiorari in the United States Supreme Court, which was denied on April 3, 2006. While the Supreme Court was considering Padilla's petition for review, the government transferred Padilla to civilian custody in an attempt to sidestep the Court's review, and charged him with terrorism-related offenses. The criminal trial began in September 2006.



Rebecca K. Glenberg, ACLU of Virginia; Ann Beeson, ACLU National Office; Art Eisenberg, NYCLU

Date filed

June 13, 2005


U.S. Court of Appeals, Fourth Circuit