U.S.-Born Terror Plot Suspect Allowed Lawyer

In a ruling hailed as a victory by both sides, a federal judge Wednesday said the government is lawfully detaining Jose Padilla as an enemy combatant in the war on terror, but at the same time allowed his defense attorney to meet with the “dirty bomb” plot suspect and begin mounting a court challenge seeking his release.

For the Bush administration, U.S. District Judge Michael Mukasey declared that Padilla’s continued lockdown inside the military brig at a naval base in South Carolina is constitutional and “is not, per se, unlawful.”

“The president is authorized under the Constitution and by law to direct the military to detain enemy combatants,” he ruled.

For the defense, the judge found that Padilla’s New York attorney, Donna R. Newman, who until now has been blocked from speaking with her client, has the right to meet with the American-born Padilla and begin mounting a legal challenge to government allegations that Al Qaeda terrorist leaders sent him back to the United States to scout targets for detonating a radioactive bomb.

“On the facts presented in this case, the balance weighs heavily in Padilla’s favor,” the judge said in ordering the military to allow Newman access to her client in Charleston.

Both sides quickly claimed victory, even as they await the larger legal battle over whether the government can hold Padilla longer -- perhaps even until the war’s end, as the Bush White House has insisted.

Central to the case is that, unlike the other enemy combatants scooped up on the battlefields in Afghanistan, Padilla, 32, was arrested by the FBI when he returned to Chicago last May.

Another American-born detainee, Yaser Esam Hamdi, is being held as an enemy combatant in a military lockup in Norfolk, Va. A Saudi national, the Louisiana-born Hamdi lived in the United States only for a short time and was picked up in Afghanistan by the U.S. military.

“In times of war, the president must be able to protect our nation from those who join with our enemies to harm innocent Americans,” said Justice Department spokeswoman Barbara Comstock. “The president must have the authority to act when an individual associated with our nation’s enemies enters our country to endanger American lives.”

Holding alleged terrorists as enemy combatants for lengthy and indefinite periods of time, she added, “is an important tool in the war on terrorism.”

Newman, on the other hand, noted that the long-expected, 102-page ruling upholds Padilla’s U.S.-given right to legal representation and clears the way for her to go back to Judge Mukasey and ask for her client’s release -- if she can prove he was not a terrorist but simply returning to America to visit relatives.

So far, she said, “we’re happy with the results, certainly. It’s a significant decision, a lengthy decision and a thorough one. It’s making something happen, not just this waiting and waiting.”

On Dec. 30, Newman and government lawyers are to confer with Mukasey for setting up parameters for her initial visit with Padilla. In contrast, about 600 war captives being held at the U.S. naval base on Guantanamo Bay, Cuba, have not been allowed legal representation.

In the past, Newman has been told that there is no guarantee that even her mail to Padilla would get through.

A high school dropout, the Brooklyn-born Padilla spent much of his youth as a Chicago gangbanger; he eventually served time as a juvenile in connection with a murder case there, and later was incarcerated for a year in Fort Lauderdale, Fla., for shooting at a motorist during a road rage incident.

But upon his release in 1992, he seemed to want to settle down. He married, became a father and began studying Islam. In fact, he became so wrapped up in his new religion that he changed his name to Abdullah al Muhajir and left for Egypt, where he told friends and family he hoped to teach.

He was arrested on May 8 at Chicago’s O’Hare International Airport after flying from Pakistan via Switzerland. He was held as a material witness for the New York federal grand jury investigating terrorism.

But on June 9, President Bush issued a written declaration officially naming Padilla an enemy combatant. He was switched to military custody and moved to Charleston. He has not been formally charged with a crime.

In support of that declaration, the administration released an affidavit from Michael H. Mobbs, a special advisor to the Department of Defense, outlining some of its evidence against Padilla.

The affidavit said Padilla became “closely associated” with Al Qaeda and at one point approached them about conducting terrorist operations in this country. Mobbs said the terrorists researched how to build a “uranium-enhanced explosive device.” He said the plan called for radioactive material to be stolen in the U.S. and for Padilla to be sent back here to “conduct reconnaissance.”

It is the Mobbs’ affidavit that Newman, through consultations with Padilla, must challenge legally if she hopes to have the Bush declaration against him dismissed.

But she has already told the judge, in her own affidavit, that she knew of no evidence that he was indeed returning to harm America. Rather, she said, he “traveled to Chicago to visit with his son,” and he then “planned to travel to Florida to visit other members of his family.”

But there also is a second Mobbs affidavit, which has not been released, but which purportedly provides more details about Padilla’s alleged role in a dirty-bomb scheme.

However, the judge said he will decide later whether to review that affidavit, depending on how Newman goes about seeking to have the Bush declaration against Padilla thrown out.

Yet so far, the judge indicated, the government is within its powers to hold Padilla incommunicado as with other unlawful combatants.

“Their detention for the duration of hostilities is supportable -- logically and legally -- on the same ground that the detention of prisoners of war is supportable: to prevent them from rejoining the enemy,” the judge said.

Eugene R. Fidell, president of the National Institute of Military Justice in Washington, said the ruling “is probably a pyrrhic victory for Padilla.”

“He has a judicial blessing for lawyer contact and lawyer assistance. The judge has indicated the courthouse door is at least open a crack for the Padillas of the world,” Fidell said. “Of course, there aren’t many Padillas of the world, and it is only open a crack.”

Lawrence Goldman, president of the National Assn. of Criminal Defense Lawyers, said that the judge’s ruling makes clear that the government cannot “willy-nilly” deny basic rights to American citizens without there being some legal challenge available.

“If, in fact, Padilla has committed a crime, we have a whole criminal justice system to deal with it,” he said.

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Serrano reported from Washington and Goldman from New York.