Separation of Powers and the War on Terror

by Duncan Hollis

An Italian Judge today issued a European Arrest Warrant for 22 individuals alleged to have been involved in a CIA abduction of a Muslim cleric in Italy in 2002. Osama Mustafa Hassan was purportedly seized by CIA agents on February 17, 2003 in Milan, without permission from Italian authorities, and sent to Egypt for questioning. Mr. Hassan later alleged being tortured through electrical shock treatments in the interrogations. An earlier Italian arrest warrant had already been issued against the 22 suspects, so today’s action is significant largely because it extends from Italy to all 25 European Union Member States the geographic scope within which these individuals could be detained.

Yesterday, the Fourth Circuit Court of Appeals rejected the Department of Justice’s request to transfer “enemy combatant” Jose Padilla from military to civilian custody to face criminal charges for participating in a terrorist organization. The Court expressed concern that DOJ ‘s criminal case no longer referenced the allegations that Mr. Padilla had taken up arms against the United States in Afghanistan and had been plotting to blow up buildings in the United States with a “dirty bomb” – allegations on which the Fourth Circuit had relied in upholding Mr. Padilla’s detention as an enemy combatant. The court suggested that the government’s actions left “the impression that Padilla may have been held for these years, even if justifiably, by mistake.” The court’s opinion also questioned whether the transfer was motivated by an effort to ensure the Fourth Circuit’s earlier decisions concerning Padilla would not be reviewed by the U.S. Supreme Court.

What do these two cases have in common? They both reflect the increased willingness of courts to check executive power, whether here in the United States or abroad. The Italian judge in the Hassan case is operating without support from Italy’s Executive Branch; the Italian Justice Minister called the judge a “leftist militant” and Prime Minister Berlusconi, a close U.S. ally, said he saw no basis for the abduction case. Similarly, the Fourth Circuit, which until now had been noted for its deference to U.S. Executive interests, has become a significant roadblock to the Executive Branch’s prosecution of Mr. Padilla. Although only anecdotal evidence, both cases suggest that the deference accorded Executive officials to combat terrorism, which was nearly absolute in the immediate aftermath of 9/11, is now seriously on the wane.

Nor is the judiciary the only governmental actor stepping in to check Executive authority. In recent weeks here in the United States we’ve witnessed the McCain Amendment, Congressional resistance to renewing the Patriot Act (with Congress giving it only a one month extension as of yesterday), and Congressional inquiries into Presidential authorization of domestic wiretapping outside of the Foreign Intelligence Surveillance Act (FISA). Similarly, in Europe, the European Parliament has announced its own investigation into allegations that the United States operated secret prisons in EU Member States for high-value terrorism suspects.

Of course, the Executive continues to have considerable authority both here and abroad when it comes to issues involving foreign affairs. In the Hassan case, for example, the Italian Government appears unwilling to request the extradition of the 22 suspects, notwithstanding the judge’s arrest warrants. And in the Padilla case, the Executive Branch hinted that it might go ahead and transfer Padilla to Miami, irrespective of the Fourth Circuit’s opinion, on the ground that it did not need judicial approval for the transfer after all.

Whether the Executive will ultimately prevail in these cases is open to question, but clearly we are leaving the initial post 9/11 period behind, and with it the notion of near absolute judicial and legislative deference to executive power. Future efforts to combat terrorism will require governments to consider the views and positions of all their branches. This may make it harder for the Executive Branch to act in future cases, and we can debate whether that will benefit terrorists. But to the extent future Executive actions are taken with the support or outright approval of their judicial or legislative branches, those actions are likely to have greater support and legitimacy that we have witnessed of late.

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