A.   The President's Determination That Padilla Is An Enemy Combatant Is Proper And Is Entitled To Be Given Effect

The amended petition does not directly challenge the President's determination that Padilla is an enemy combatant.  It is clear, in any event, that the President's determination is proper, and, under any appropriate standard of review, is entitled to be given effect in this proceeding.

1.  As the Fourth Circuit recently explained in addressing an analogous habeas action, the petition in this case "arises in the context of foreign relations and national security, where a court's deference to the political branches of our national government is considerable."  Hamdi, 296 F.3d at 281; see generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-321 (1936); The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862).  Indeed, "[d]eference by the courts to military-related judgments * * * is deeply recurrent in Supreme Court caselaw and repeatedly has been the basis for rejections to a variety of challenges to * * * decisions in the military domain."  Able v. United States, 155 F.3d 628, 633 (2d Cir. 1998).

The deference owed the political branches on matters of national security "extends to military designations of individuals as enemy combatants in times of active hostilities."  Hamdi, 296 F.3d at 281.  That is because the "executive is best prepared to exercise the military judgment attending the capture of alleged combatants," and because the "government has no more profound responsibility than the protection of Americans, both military and civilian, against additional unprovoked attack."  Id. at 283.  The determination that an individual should be detained as an enemy combatant, in fact, is one of the most fundamental of all military judgments.  See Hirota v. MacArthur, 338 U.S. 197, 215 (1949) (Douglas, J., concurring) ("[T]he capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander-in-Chief, and as spokesman for the nation in foreign affairs, had the final say.").[1]  Accordingly, while courts generally owe a "healthy deference" to "executive judgments in the area of military affairs," Rostker v. Goldberg, 453 U.S. 57, 66 (1981), the specific military judgment in this case -- the decision in a time of war that an individual is an enemy combatant and should be detained to prevent his assisting the enemy and his endangering the national security -- is especially deserving of judicial deference.

 2.  The President's determination of June 9, 2002, and the sworn declaration appended hereto readily satisfy any constitutionally appropriate standard of judicial review of the determination that Padilla is an enemy combatant.  The Court owes the executive branch great deference in matters of national security and military affairs, and deference is particularly warranted in respect to the exceptionally sensitive and important determination at issue here.  To the extent that the courts conclude that judicial review may be had of an executive determination during a war that an individual is an enemy combatant, such review is limited to confirming based on some evidence the existence of a factual basis supporting the determination.  See Able, 155 F.3d at 634 ("In the military setting, * * * constitutionally-mandated deference to military assessments and judgments gives the judiciary far less scope to scrutinize the reasons, legitimate on their face, that the military has advanced to justify its actions.") (emphasis added).  The President's determination of June 9, 2002, and the attached Mobbs Declaration more than amply demonstrate the existence of a factual basis to support the determination that Padilla is an enemy combatant.

The Mobbs Declaration explains that, after Padilla was released from prison in the United States in the early 1990s, he traveled to Afghanistan, Pakistan, Egypt, and Saudi Arabia, and was closely associated with the al Qaida network.  Mobbs Decl. 4-5.  The declaration further elaborates that Padilla met with senior al Qaida leaders on several occasions in 2001 and 2002 to discuss his involvement in terrorist operations targeting the United States, including a plan to build and detonate a "dirty bomb" within the United States.  Id. 6-10.  Padilla trained with al Qaida at the direction of senior al Qaida operatives, studying, among other things, the wiring of explosive devices.  Id.6-7.  The Mobbs Declaration goes on to describe that Padilla returned to the United States on May 8, 2002, dedicated to carrying out acts of terrorism against United States citizens on behalf of al Qaida, and specifically to advance plans to detonate explosive devices on United States soil.  Id. 9-10.  The declaration thus confirms that there is an ample factual basis for the President's determination that Padilla is an al Qaida affiliate who engaged in hostilities against the United States and should be detained as an enemy combatant.

Indeed, when addressing habeas challenges to executive determinations in contexts much less constitutionally sensitive than the one in this case, courts have refused to reexamine or reweigh the factual basis for the determination, instead only verifying the existence of "some evidence" supporting it.  See, e.g., INS v. St. Cyr, 533 U.S. 289, 306 (2001) (deportation order: "Until the enactment of the 1952 Immigration and Nationality Act, the sole means by which an alien could test the legality of his or her deportation order was by bringing a habeas corpus action in district court.  In such cases, other than the question whether there was some evidence to support the order, the courts generally did not review factual determinations made by the Executive.") (citations omitted); Eagles v. United States, 329 U.S. 304, 312 (1946) (selective service determination: "If it cannot be said that there were procedural irregularities of such a nature or magnitude as to render the hearing unfair, or that there was no evidence to support the order, the inquiry is at an end.") (citations omitted); United States v. Commissioner, 273 U.S. 103, 106 (1927) (deportation order: "Upon a collateral review in habeas corpus proceedings, it is sufficient that there was some evidence from which the conclusion of the administrative tribunal could be deduced."); Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (extradition order: "[H]abeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.").  The role of a court in those contexts is limited to confirming that there is some basis for the executive judgment and does not entail undertaking a de novo review for itself.

Moyer v. Peabody, 212 U.S. 78 (1909), is instructive on this score.  There, the Court considered the due process claim of a person who had been detained for months without probable cause by the governor of Colorado, who was acting in his capacity as "commander in chief of the state forces" during a local "state of insurrection."  Id. at 82.  In rejecting the detainee's claim, Justice Holmes, writing for a unanimous Court, explained:  "So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office, on the ground that he had not reasonable ground for his belief."  Id. at 85.  Those principles are directly relevant here.  See United States v. Salerno, 481 U.S. 739, 748 (1987) ("[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.") (citing Moyer).

The reasons for limiting judicial second-guessing of the factual basis for an executive determination are at their most compelling in the circumstances of this case, which involves a challenge to the President's determination in a time of war that a particular individual is an enemy combatant who came to the United States as an al Qaida affiliate to advance the enemy's terrorist campaign against United States citizens.[1]  Such determinations involve highly sensitive intelligence information and judgment calls about the credibility of foreign intelligence sources.  The President’s determination as Commander in Chief that an individual is an enemy combatant should, at a bare minimum, be accorded effect by the courts as long as some evidence supports that determination.  That standard, as a matter of law, is more than satisfied here.  A more demanding inquiry would invite the "special hazards of judicial involvement in military decision-making," and "would stand the warmaking powers of Articles I and II on their heads."  Hamdi, 296 F.3d at 284.

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