IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

JOSE PADILLA,

DONNA R. NEWMAN,:

    as Next Friend of Jose Padilla

    Petitioners,:

02 Civ. 4445 (MBM)

GEORGE W. BUSH,

DONALD RUMSFELD,  

JOHN ASHCROFT, 

COMMANDER M.A. MARR, 

    Respondents.  

RESPONDENTS’ RESPONSE TO, AND MOTION TO DISMISS, THE AMENDED PETITION FOR A WRIT OF HABEAS CORPUS

Respondents George W. Bush, President of the United States, Donald Rumsfeld, Secretary of Defense, John Ashcroft, Attorney General, and Commander M.A. Marr, Commanding Officer of the Consolidated Naval Brig in Charleston, South Carolina, by and through undersigned counsel, oppose and hereby move to dismiss the amended petition for a writ of habeas corpus in this case.

The amended petition challenges the legality of the detention of Jose Padilla (a/k/a Abdullah Al Muhajir) at the Consolidated Naval Brig in Charleston, South Carolina.  As explained in our Motion to Dismiss dated June 26, 2002, this Court lacks jurisdiction over the petition for two separate reasons.  First, because petitioner Newman fails to satisfy the strict, "significant relationship" test for establishing "next friend" status, she lacks standing to bring the petition on Padilla's behalf.  See Whitmore v. Arkansas, 495 U.S. 149 (1990).  Second, under the settled rules governing habeas actions, the only proper respondent in this case is Padilla's immediate custodian, Commander Marr.  See 28 U.S.C. 2243 (providing that the writ "shall be directed to the person having custody of the person detained") (emphasis added).  Commander Marr, however, lies beyond this Court's territorial jurisdiction; and even if the Court's jurisdiction extends to the reach of the New York long arm statute, Commander Marr lacks any relevant connection to the State.  Accordingly, the petition should be dismissed for lack of jurisdiction, or should be transferred to the United States District Court for the District of South Carolina.

In the event that this Court declines to dismiss the amended petition for lack of jurisdiction or to transfer the case to the District of South Carolina, the Court should dismiss the amended petition on the merits for the reasons explained in this return and motion.  The legality of Padilla's military detention as an enemy combatant is confirmed by historical tradition, by the established practice of the United States in times of war, and by longstanding decisions of the Supreme Court and other courts.  The rule is settled:  the military has the authority to detain an enemy combatant for the duration of an armed conflict.  Petitioners' claims under the Constitution and under federal statutes thus fail as a matter of law.