Amicus Brief: Padilla’s Detention Violates Constitutional Due Process Protections

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This brief focuses on two issues: (1) Mr. Padilla’s right to present, through counsel, evidence that he is not an “enemy combatant;” and (2) the authority of the federal courts to exercise meaningful judicial review of the Executive’s designation of him as such. The brief demonstrates that the core guarantee of our constitutional system dictates that all persons seized within the United States are entitled to access to counsel and to a hearing at which they may present evidence and be heard. The Executive’s invocation of the words “enemy combatant” erases none of these traditional requirements.

The Executive’s incommunicado detention of Mr. Padilla is tantamount to an illegal suspension of habeas corpus. The Executive seeks to justify its position through the novel proposition that allowing Mr. Padilla to learn that a court is reviewing his case might give him hope of someday getting out, thereby upsetting the “sense of dependency and trust that the interrogators are trying to create.” But these tactics would allow the Executive to create nothing short of a modern day Star Chamber; prisoners accused of plotting against the King were also thought to have valuable intelligence. Such tactics are precisely what the Founders sought to prohibit.

The brief was written by Jenny Martinez, a professor at Stanford Law School, and the law firm of Jenner & Block, LLC. It was signed by retired federal judges, former government officials and prominent lawyers who are deeply concerned about the Executive’s unprecedented claims in this case:

Hon. John J. Gibbons
Hon. Nathaniel R. Jones
Hon. Abner J. Mikva
Hon. William A. Norris
Steven Pesner
Hon. H. Lee Sarokin
Hon. Harold R. Tyler, Jr.
Donald Francis Donovan
Scott Greathead
Robert E. Juceam
Philip Allen Lacovara
Robert Todd Lang
Robert M. Pennoyer
Barbara Paul Robinson
William D. Zabel