AMY GOODMAN: You are listening to Democracy Now!, The War and Peace Report. I’m Amy Goodman, here with Juan Gonzalez.

JUAN GONZALEZ: And good day to all of our listeners and viewers around the country. Amy, quite a few stunning decisions in the courts yesterday. The Padilla case has several columns — I’ve actually written several on it in the “New York Daily News.” Many people consider it probably the biggest challenge to constitutional liberties in the post 9-11 era. We’re going to get right to that. The Bush administration was dealt a double blow yesterday when two federal court rulings undermined the detention policy of suspected terrorists. In New York, a divided court ruled that president Bush lacked the authority to indefinitely detain Jose Padilla, a U.S. citizen by declaring him an enemy combatant. Hours later in San Francisco, the federal judges ruled the policy of imprisoning 600 non-citizens in a naval base in Guantanomo Bay, Cuba, without access to United States legal protections was unconstitutional, as well as a violation of international law.

AMY GOODMAN: In addition, the Inspector General’s office at the Justice Department released a detailed report of rampant abuse of detainees of the government-run detention center in Brooklyn, New York. In the Jose Padilla case, the majority of the three-judge panel ruled that while Congress might have the power to authorize the detention of an American, the president acting on his own did not. Padilla has been held in solitary confinement for 18 months without access to a lawyer or courts. No charges have been filed against him. Padilla is a U.S. citizen born in Brooklyn. The court gave the government 30 days to charge Padilla, release him or hold him as a material witness.

JUAN GONZALEZ: The evidence against Padilla came under question soon after his arrest in May of 2002. One Congressional staffer who was briefed on the case said, quote, not many people were satisfied that we had a hell of a whole lot on him. The White House said it would have to seek to have the ruling overturned and directed the Justice Department to seek a stay. White House press secretary Scott McClellan addressed the Padilla ruling. This is what he had to say.

SCOTT MCCLELLAN: The second circuit ruling is troubling and flawed. The president has directed the Justice Department to seek a stay, and further judicial review. This is a case in which an individual was involved with terrorist organization activity and was actively engaged in an effort to do harm to the American people.

[QUESTION FROM WHITE HOUSE PRESS:] Why couldn’t that be adjudicated in some way by going through the regular court system instead of making him an enemy combatant.

SCOTT MCCLELLAN: First of all, let’s remember what we’re talking about. We’re talking about an individual who was involved in seeking to do harm to the American people. The president has repeatedly said his most solemn obligation and responsibility is to protect the American people. The second circuit’s ruling is really inconsistent with the clear constitutional authority of the president and his responsibility that I just mentioned and with previous Circuit and Supreme Court rulings.

The Fourth Circuit previously ruled on a similar matter, and it upheld the authority of the president to designate enemy combatants. So, let’s keep all of that in mind. The president is going to continue aggressively pursuing the war on terror and do everything that he can to prevent an attack from happening in this country.

AMY GOODMAN: White House press secretary Scott McClellan. Today we’re going to have a debate on the case. We’re joined by Barbara Olshansky, assistant legal director of the Center for Constitutional Rights, which committed a brief to the court criticizing the government for holding enemy combatants. She is the author of “Secret Trials and Executions, Military Tribunals and the Threat to Democracy.”

On the phone with us from Washington is Richard Samp, chief council of the Washington Legal Foundation, which submitted a brief to the court backing the government on its enemy combatant policy on behalf of three Republican members of Congress, Walter Jones of North Carolina, Lamar Smith of Texas and John Sweeney of New York. Richard Samp, let’s begin with you. The significance of the ruling yesterday?

RICHARD SAMP: Quite significant, not for the reasons that most people had expected it to be, but rather, it’s a ruling that significantly cuts back on the power of the president to conduct foreign policy. Most people, including myself, believe that the constitution squarely puts the foreign policy power into the hands of the president. The Court of Appeals seems to think that, no, really it resides either in the courts or in Congress, and said that the president cannot do pretty much of anything to defend the country, at least within the domestic sphere without the specific endorsement of Congress.

JUAN GONZALEZ: And Barbara Olshansky, your interpretation of the court’s ruling?

BARBARA OLSHANSKY: Well, I really view it very differently. I think this decision really didn’t have to do with foreign policy. It had to do with the exercise of the president’s war powers in domestic civil society. That’s something that Congress has explicitly denied the president in the anti-detention statute. By the way, that’s something that is deeply embedded in the history of democracy of this country and our constitution. The separation of powers is a very strong principle that’s adhered in this democracy from time in memorial.

AMY GOODMAN: And specifically in the case of Jose Padilla, what exactly does this mean?

BARBARA OLSHANSKY: Well, it’s a very interesting situation where the designation by the president of enemy combatant status, which by the way, there is really no such status in international humanitarian law, but that designation was used to put Mr. Padilla in solitary confinement for 18 months, without access to counsel or the courts. What that meant is that no one gets to review that designation by the president. In the court papers, what the government said is that they don’t plan to charge him with any crime. They don’t even allege that he was a member of Al-Qaeda. What they were keeping him for was investigative purposes. In this country, we don’t have investigative detention. So, what this court said is the president Clearly overstepped his constitutional boundaries. We don’t arrest American citizens on American soil far from the theater of war, and put them in indefinite investigative detention. We just don’t do that.

JUAN GONZALEZ: Richard Samp, I’d like to get back to this issue that you raised of the court’s intervening in foreign policy issues. Certainly, the case that the courts seem to refer to the most — the anti-detention act that was passed by Congress actually was in response to the Japanese detentions of World War II and it was in the 1970’s that Congress said that the president cannot detain American citizens without specific authorization of Congress. And the appeals court decision seems to weigh heavily on that, that you have to have a president, even in time of war, a president that has — a president has to have Congressional authorization to detain U.S. citizens on U.S. soil.

RICHARD SAMP: That’s what they held. My understanding is that has never been the law before yesterday. As you mentioned in your prior story, this decision directly conflicts on that point with the decision from the Federal Appeals Court in Richmond. I would agree with everything that Miss Olshansky said that the detention of an American citizen raises serious questions and the serious questions before the appeals court but that they failed to decide whether, what level of review why were you going to give somebody like that and obviously some review was required. Furthermore, are you going to give that person access to counsel? Those are very important questions, and I think they’re troubling to all Americans. Instead of ruling on those issues, the court simply said, flat out, we are going to deny the war power to our commander in chief to make these kinds of decisions. That’s totally unprecedented.

AMY GOODMAN: Barbara Olshansky?

BARBARA OLSHANSKY: In fact, I don’t think it’s unprecedented. I think, Ron, what you were saying about the anti-detention statute is very apt here. I think the legislative history is really clear. When Congress was passing this act, it was overturning an emergency detention act that was used to intern thousands of Japanese Americans. If you look at the legislative history and what Congressmen and Senators said, they said, we don’t ever want this mistake again. Even in a time of war, we don’t do this within American society and civil society to American citizens. So, they expressly denied the president that authority. And the thing is, if you are looking for precedent, there’s significant difference between Mr. Hamdi and Mr. Padilla. Mr. Hamdi’s circumstances under which he was detained are very different. Mr. Padilla was arrested in O’Hare airport, unarmed. The government now admits that they really don’t and haven’t had the basis for criminal charges against him. Those circumstances are different. If you look to the past for ex-parte —

JUAN GONZALEZ: Whereas in the other case, The Hamdi case, Hamdi was captured on the battlefield, an American citizen captured on the battlefield in Afghanistan, similar to John Walker Lindh, who by the way, did get his day in court in the United States.

BARBARA OLSHANSKY: Yes he did, and I think that’s a very interesting point, and the analysis that the courts have undertaken stems from this case called Youngstown, when President Truman tried to take over the steel mills to make sure they were going to be operating during the time of war. What the court said is there are these tiers of presidential power, and when the presidential power comes into conflict with what Congress has explicitly denied him, then there’s a role for the federal courts. At a very basic level, what this case is about is — you know, is the executive going to be reviewed by the judiciary. Do judges get to look at what the administration is doing, and say whether it’s constitutional or not … And at each interception that we have had with this administration, they have said basically to the district court and to other courts, you don’t get to review it. And in a sense, Richard is right, because, you know, that issue, the way that it was posed to the district court was, well, can you really look at evidence that was put forward … And the idea was, well, we’ll do the standard, will you get to look — just at the document. Is this an affidavit? Okay. That’s all the court gets to say. What the court is saying here is no. Our constitutional obligation is to look hard — at whether the president has this authority. And they said no.

AMY GOODMAN: We have to break for stations to identify themselves, but we’ll come back with this discussion. Barbara Olshansky, assistant legal director of the Center for Constitutional Rights, and Richard Samp, chief counsel of the Washington Legal Foundation. They have both submitted opposing briefs in the Padilla versus Rumsfeld case.