Administration Is Making Special Case Out of Padilla

Even among the extraordinary terrorism cases of the last two years, Jose Padilla’s has stood out.

Although born in the Bronx and arrested at Chicago’s O’Hare International Airport, he is classified as an enemy combatant and locked up in a brig in South Carolina. He is accused of planning to build a “dirty bomb,” one that uses conventional explosives to spread radioactive material.

Padilla is believed to be the only U.S. civilian since World War II to be held on a president’s order alone and denied all rights -- including talking with his family and lawyers.

Although the U.S. Constitution says, “No person shall be ... deprived of liberty without due process of law,” presidents have claimed emergency powers to detain citizens in wartime. Shortly after the Japanese attacked Pearl Harbor in 1941, President Franklin D. Roosevelt ordered the detention of thousands of Japanese Americans.

To prevent abuses of power, Congress passed a law in 1971 that says, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.”

Lawyers for the Bush administration maintain that Padilla may be held indefinitely at the president’s order -- and without a hearing in any court.

Padilla, 31, was arrested by the FBI on May 8, 2002, after arriving in Chicago on a flight from Pakistan. He had a criminal record as a youth in Chicago and as a young adult in Florida. He converted to Islam while in prison and took the name Abdullah al Muhajir.

Upon his arrest at O’Hare, Padilla was taken to New York and held as a “material witness,” presumably to testify against others. He was assigned a lawyer, Donna R. Newman, who met with him several times.

The following month, Atty. Gen. John Ashcroft announced that the government had “disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive ‘dirty bomb.’ ” He was referring to Padilla’s case.

According to Ashcroft, Padilla had been “exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,’ ” in the United States.

“We know from multiple, independent and corroborating sources that Abdullah al Muhajir was closely associated with Al Qaeda and that he was involved in planning future terrorist attacks on innocent American civilians,” Ashcroft said.

Padilla was transferred to a military prison in South Carolina and was no longer able to meet with his attorney. Newman and her co-counsel, Andrew Patel, filed a writ of habeas corpus in New York contending Padilla was being held illegally.

In response, the government’s lawyers pointed to the “Mobbs declaration” -- a six-page narrative filed by Michael Mobbs, a Defense Department official. The paper cited Padilla’s travels in the Mideast and meetings with Al Qaeda operatives.

The Mobbs declaration, however, includes a footnote that appears to cast doubt on the two “confidential sources” who pointed to Padilla.

“It is believed that these confidential sources have not been completely candid about their association with Al Qaeda and their terrorist activities,” the footnote said. “Some information ... remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials.

“One of the sources, for example ... recanted some of the information that he had provided, but most of the information has been independently corroborated by other sources,” the footnote continued. “In addition, at the time of being interviewed by U.S. officials, one of the sources was being treated with various types of drugs to treat medical conditions.”

In an ordinary criminal case, the notation would give defense lawyers an opening to attack the government’s case, but Padilla’s attorneys have had no such opportunity.

In their brief filed in July with the U.S. appeals court in New York, government attorneys said no additional evidence was needed to hold Padilla.

Asserting there is “great deference owed the president’s determination that Padilla is an enemy combatant,” they said that “any effort to ascertain the facts concerning Padilla’s conduct while amongst the nation’s enemies would entail an unacceptable risk of obstructing war efforts authorized by Congress and undertaken by the executive branch.”

The U.S. 2nd Circuit Court of Appeals in New York says it will hear oral arguments in November. But the government’s lawyers assert that the court has no jurisdiction, since Padilla is now held in a military prison, and they say they have no intention of abiding by a judge’s order that would even allow Padilla to speak with an attorney.

“Petitioner Padilla is a being held by the military as an enemy combatant in the course of the continuing armed conflict,” the government’s lawyers told the appeals court. “The commander in chief has wartime authority to detain enemy combatants, including, as here, in the case of a United States citizen captured on United States soil.”

Last month, a group of prominent lawyers and retired judges -- Republicans and Democrats -- filed a friend-of-the-court brief urging the court to reject what they called an “astonishing” claim of presidential power.

“Though we go across the political spectrum, all of us agreed if there is one case that represents the worst of this administration’s post-Sept. 11 intrusions on civil liberties, this is it,” said Robert A. Levy, a constitutional scholar at the Cato Institute, a Washington-based libertarian group. “The executive branch doesn’t have the unilateral authority to suspend the law and seize a U.S. citizen on U.S. soil.”

He was joined by Judge Harold R. Tyler, who was second in command at the Justice Department under President Ford.

“This man is an American citizen. He has been confined without charges,” Tyler said of Padilla. “Our Constitution says you can’t do that. There’s nothing in the law that says if the president signs some piece of paper, that takes care of it. The law says the president can’t get away with that.”

Padilla’s case represents one of several paths that the administration has followed in its legal war on terrorism. Most of nearly 1,000 persons arrested and detained after the Sept. 11, 2001, attacks were aliens, and they were held on immigration charges.

John Walker Lindh, the California native who was fighting for the Taliban in Afghanistan, and Richard Reid, the Briton who tried to set off a shoe bomb on a flight from Paris, were charged with crimes in federal court and pleaded guilty.

Zacarias Moussaoui, the French-born Muslim accused of aspiring to hijack an airliner, was charged as an Al Qaeda conspirator in a federal court in Virginia. He has insisted on defending himself in a criminal trial.

Unlike Moussaoui and Reid, Padilla is a U.S. citizen. And unlike Lindh, he was not fighting on the battlefield.

In order to hold Padilla, the administration declared a new category of civilian prisoner: the enemy combatant.

“The military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts,” Ashcroft said.

Since then, two more persons have been designated as enemy combatants: Yaser Esam Hamdi, a U.S. citizen who allegedly fought for the Taliban in Afghanistan, and Ali Saleh Kahlah al-Marri, a Saudi native who was described as an Al Qaeda operative. Both were transferred to military custody.

Some legal observers say the president is simply exercising a traditional authority of the commander in chief.

“Under the laws of war, it has long been legitimate to hold enemy combatants as prisoners until the end of hostilities,” said John Yoo, a law professor at UC Berkeley who served in the Justice Department until June. “No criminal charges are involved because the detention is not a punishment. It is a measure to prevent the enemy from returning to fight against us.”

Pepperdine University law professor Douglas Kmiec also said he believed the administration’s stand would be upheld. “I don’t think this is totally without precedent,” he said. “When someone is fighting outside an organized army and contrary to the laws of war, that person can be held as an unlawful combatant.”

But Jenny Martinez, a law professor at Stanford who worked on the friend-of-the-court brief in Padilla’s case, said the administration would be rebuked if the case reaches the Supreme Court.

“This is an outrageous case, an extension of presidential power beyond anything we have seen,” she said.Administration lawyers have cited the World War II case of the Nazi saboteurs -- eight German soldiers who landed on U.S. shores with a plan to carry out sabotage. A special military court found them guilty, and six of the eight were executed.

The case established that “unlawful combatants,” unlike prisoners of war, can be tried and condemned to death.

Padilla’s lawyers point out that the Nazi saboteurs had two things their client does not: access to their lawyers and a trial.

“It doesn’t make sense to me,” co-counsel Patel said, “that a Nazi soldier during a war should have more rights than a non-soldier during a non-war.”