Julianna wrote:Я так понимаю, вы тут в юристов играете.
почитайте following documents first, and then argue.
Direct History of the case 1. Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564 (S.D.N.Y. Dec 04, 2002)
Opinion Adhered to on Reconsideration by 2. Padilla ex rel. Newman v. Rumsfeld, 243 F.Supp.2d 42 (S.D.N.Y. Mar 11, 2003)
Motion to Certify Appeal Granted by 3. Padilla ex rel. Newman v. Rumsfeld, 256 F.Supp.2d 218 (S.D.N.Y. Apr 09, 2003)
Julianna, спасибо за ссылки.
Итак, в первом случае Mukasey постановил, что:
A. The President’s Authority To Order That Padilla Be Detained As An Enemy Combatant
"the basis for the President’s authority to order the detention of an unlawful combatant arises both from the terms of the Joint Resolution, and from his constitutional authority as Commander in Chief as set forth in The Prize Cases and other authority discussed above."
B. Is Padilla’s Detention Barred by Statute?
"the detention of Padilla is not barred by 18 U.S.C. § 4001(a); nor, as discussed above, is it otherwise barred as a matter of law."
То есть первый суд установил, что Президент имеет право задерживать unlawful combatants и задержание Падиллы не было противозаконным.
Далее начинаются моменты, неприятные для ответчика:
V. CONSULTATION WITH COUNSEL
"Because this court has jurisdiction over Padilla’s petition, and because the procedure outlined by the applicable statutes cannot be followed unless Padilla is permitted to consult with counsel, respondent Secretary Rumsfeld will be directed to permit Padilla to consult with counsel solely for the purpose of submitting to the court facts bearing upon his petition, under such conditions as the parties may agree to, or, absent agreement, such conditions as the court may direct so as to foreclose, so far as possible, the danger that Padilla will use his attorneys for the purpose of conveying information to others."
VI. THE STANDARD APPLICABLE TO THIS COURT’S REVIEW AND THE FACTS THE COURT MAY CONSIDER
"Before Padilla consults with counsel for the purpose of submitting facts to the court in aid of his petition, it would seem essential for him to know what standard the court will apply in determining whether whatever facts the government has presented are sufficient to warrant the finding in the President’s June 9 Order that Padilla is an unlawful combatant."
И вывод:
"To recapitulate: (i) Newman may pursue this petition as next friend to Padilla, and the government’s motion to dismiss for lack of standing therefore is denied; (ii) Secretary Rumsfeld is the proper respondent in this case, and this court has jurisdiction over him, as well as jurisdiction to hear this case, and
the government’s motion to dismiss for lack of jurisdiction, or to transfer to South Carolina, is denied; (iii)
the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla’s detention is not per se unlawful; (iv)
Padilla may consult with counsel in aid of pursuing this petition, under conditions that will minimize the likelihood that he can use his lawyers as unwilling intermediaries for the transmission of information to others and may, if he chooses, submit facts and argument to the court in aid of his petition; (v)
to resolve the issue of whether Padilla was lawfully detained on the facts present here, the court will examine only whether the President had some evidence to support his finding that Padilla was an enemy combatant, and whether that evidence has been mooted by events subsequent to his detention; the court will not at this time use the document submitted in camera to determine whether the government has met that standard."
То есть:
(ii) решение в юрисдикции данного суда;
(iii) Президент имеет право задерживать enemy combatants и задержание Падиллы по сути не является незаконным;
(iv) адвокат должен быть допущен к Падилле;
(v) суд должен рассмотреть данные на основании которых Падилла объявлен enemy combatant для определения факта законности задержания Падиллы.
