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Homeland Security

SLUG: 3-838 Enemy Combatant
DATE:
NOTE NUMBER:

DATE=12-19-03

TYPE=INTERVIEW

NUMBER=3-838

TITLE=ENEMY COMBATANT

BYLINE=DAVID BORGIDA

DATELINE=WASHINGTON

CONTENT=

INTRODUCTION

Professor Antonio F. Perez from the Law School at Catholic University, discusses the nature of the legal case of the so called "enemy combatant", Jose Padilla, and the case of a detainee in Guantanamo Bay, Cuba, who has been granted a court hearing in the United States.

MR. BORGIDA

And now joining us to further discuss this matter, Antonio Perez, a law professor at Catholic University here in Washington, D.C. Professor Perez, thanks for being with us on NewsLine.

How significant are these cases, and is there one in particular you think is more significant than the other?

PROFESSOR PEREZ

The Padilla case ultimately may be the most significant, because the government's theory is the broadest theory of governmental power. That said, that case isn't yet going to the Supreme Court. There may be an intermediate procedure, where the whole 2nd Circuit might ultimately hear the case. This is just the judgment of a panel of the 2nd Circuit.

MR. BORGIDA

The whole issue of the rights of those who have been taken into custody versus the United States' concern about terrorism is a tough balance legally. What are your thoughts on that?

PROFESSOR PEREZ

Well, we see this set of unprecedented circumstances obviously. And in fact, that's what complicates the legal analysis for the judges, and ultimately for the Supreme Court in this case. The key statutory problem is that Congress enacted a law that prevented the detention of American citizens except pursuant to another statute. And the extraordinary question now is whether the authorizing resolution that permitted the President to attack Afghanistan should be read broadly enough to constitute an authorization also to detain American citizens as part of that war.

MR. BORGIDA

Tough to follow if you're not an attorney I know, and I'm certainly not one, but it gives us some sense of the state of play. It's clear, though, that the White House is not particularly happy with these court rulings in dismissing this. And we indicated in our report a moment ago, they're dismissing it. It sets up kind of a collision course, I guess, between the White House and the judiciary?

PROFESSOR PEREZ

Absolutely. The point here is the administration, for the first time in American history, is outlining a theory of war in which the whole zone of combat is the United States. And that includes authority to detain persons as part of the President's powers in the Law of War. Historically, we've made a distinction between the President's powers outside the United States to fight a war and the normal rules of law within the territory of the United States.

MR. BORGIDA

In your view, is there an overstepping here in terms of this process of detaining these suspects, or do you think that this administration has reached a happy medium? A loaded question I know, and don't worry about your answer; we'll be okay here.

PROFESSOR PEREZ

I was a former government lawyer, and we used to say those kinds of questions were above our pay grade.

The troubling feature of this whole war is that individuals operating under command and control of terrorist organizations can do as much violence as massed armies and states could in the past. In light of those circumstances, it's hard to wholly reject the government's theory that the President's war powers extend to what's necessary to prevent another attack like the attack on the Twin Towers.

PROFESSOR PEREZ

Well, thank you for answering it. I know that's probably the toughest question of all.

The thoughts and views of Catholic University Law Professor Antonio Perez on this issue of the rulings by courts on the issue of enemy combatants here in the United States. We appreciate your thoughts, Professor. Thanks for being with us today.

PROFESSOR PEREZ

My pleasure.

(End of interview.)

NEB/PT



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