Jose Padilla: Dirty Bomber or Test ballon?

[mburbank]

The article I'm posting is long, but if you are interested in civil liberties, you should read it.

If Jose Padilla's treatment is allowed to stand, it will mean the government has established a right to make a US citizen disapear, without charges, without access to a lawyer, possibly forever, based on evidence kept secret even from the Judiciary. There is currently no way to even establish if Padilla is alive. Even if he's a scumbag, even if he's guilty, when if the right to make US citizens just vnish is established, we aren't the United States anymore.

Here's the article.


Enemy Combatant Vanishes Into a 'Legal Black Hole'

By Paula Span
Washington Post Staff Writer
Wednesday, July 30, 2003; Page A01

Second of two articles

NEW YORK -- It was the luck of the draw.

Some other spring morning, Donna Newman would have encountered a different client in a prison jumpsuit, someone accused of fraud or drug trafficking. Instead, arriving at the federal courthouse in downtown Manhattan in May 2002, she met Jose Padilla.

Newman serves on a panel of private practice attorneys who occasionally take on indigent clients facing federal charges. She accepts new cases two days a year. "I believe in defending indigents," she said. "You gotta give back." At the time, though, she had no inkling how much she was about to give.

Padilla, arrested by the FBI at Chicago's O'Hare International Airport on May 8, had been flown east to appear before a grand jury as a material witness. The subject he supposedly had knowledge of -- an al Qaeda plan to detonate a "dirty bomb" in the United States -- sounded scarier than most. Another alarming sign was that every time Newman set her pen down on the courtroom table during that first appearance, federal marshals handed it back to her, evidently so that Padilla couldn't seize it as a weapon.

Still, for Newman, the procedures seemed largely routine -- until June 9, when President Bush declared her client an enemy combatant and Padilla was hauled off to a brig in South Carolina. At that point, the Padilla case detonated, largely consuming Newman's practice, her leisure, her life for the coming year and plunging her into an extraordinary constitutional debate.

The pivotal question: Can an American citizen, arrested on U.S. soil, be held incommunicado in a military prison indefinitely -- without being charged with a crime, without access to a lawyer?

The issue has ignited a fierce debate over civil liberties. It has been argued on the Senate floor and on op-ed pages, and Amnesty International has condemned Padilla's treatment as "an unprecedented suspension of fundamental rights of U.S. citizens in U.S. custody."

Newman and her co-counsel, however, are grappling with a more pragmatic question: How do you represent a client you can't talk to?

The Client

The man was on the short side, clean-shaven; he looked younger than his 31 years, Newman recalled. And he was wearing what is known around the courthouse as "a three-piece suit" -- wrist irons, leg irons and a connecting metal belt.

Newman, like many defense attorneys, had represented clients in other terrorism witness cases since Sept. 11, 2001. "There were a whole slew of them," she said. "Initially, you don't recognize that this one is huge."

Without much trepidation, therefore, she went about meeting with her client for more than 20 hours, she estimates. At the Metropolitan Correctional Center, she had to speak to him through a screen, another signal that the government considered him particularly dangerous. But otherwise, "he didn't impress me as any different from my other clients in personality or demeanor."

Padilla, who, like Newman, was born in Brooklyn, was "quiet, concerned about his predicament." Newman struggled to explain that he had been arrested but, as a potential witness, not charged with anything -- "a difficult concept to swallow" even for a man with considerable experience in the criminal justice system.

He was "very concerned" about his family -- his mother and other relatives in Florida, a son in the Chicago area -- with whom he was not permitted to communicate. "He'd ask questions about them constantly," Newman said.

The last time she saw him was on June 7, 2002. The court was scheduled to hear her motions on June 11. "If we succeeded, he would have been released."

Instead, she got a call on her cell phone June 10 from Assistant U.S. Attorney Eric Bruce. "The military is taking your client," she remembered him saying. "I thought he was kidding. I could not comprehend what he was talking about."

It became clearer that evening when Attorney General John D. Ashcroft, in Moscow for meetings, held a news conference announcing the capture of "a known terrorist." Bush had determined that Padilla was "an enemy combatant who poses a serious and continuing threat to the American people," Ashcroft said. Padilla had therefore been transferred to Defense Department custody and sent to a Charleston, S.C., naval brig, where he has been unable to communicate with anyone except his guards and interrogators ever since.

At the time, Newman cracked a weak joke on the phone. "My motions weren't that good," she told the prosecutor.

'Grave Danger'

Even among the three men known to be designated enemy combatants and being held incommunicado in military brigs in the United States, Padilla's case stands out.

Unlike the Qatari graduate student added to the list last month, Ali Saleh Kahlah al-Marri, Jose Padilla is an American citizen. Unlike Yaser Esam Hamdi, who is also a citizen and has been held in a Norfolk brig even longer, he was not apprehended on a battlefield. Hamdi was fighting with the Taliban in Afghanistan, the government said, and was carrying an AK-47 when his unit surrendered. Padilla was arrested at O'Hare, unarmed.

So Padilla's case has drawn particular attention. "People have trouble with people being taken off the streets and thrown into a legal black hole," Newman said.

The basis for Padilla's detention was a six-page statement by Michael Mobbs, a Pentagon official. It laid out the government's contention, based on "multiple intelligence sources," that Padilla -- whose criminal record includes prison terms in Illinois and Florida -- had close associations with al Qaeda leaders as he traveled in Saudi Arabia, Afghanistan and Pakistan over several years.

Although Padilla had trained in wiring explosives, Mobbs stated, his plan to detonate a dirty bomb had not progressed far; it was "still in the initial planning stages." Nevertheless, Bush had determined that "Padilla posed a continuing, present and grave danger" and that his detention was necessary to prevent attacks.

Court battles in these cases have centered on two primary questions. First, does the president have the constitutional authority to designate citizens suspected of terrorism as enemy combatants and hold them incommunicado, without charging them with crimes? So far, courts hearing the Hamdi and Padilla cases have ruled that he does, though the challenges continue.

But since both are U.S. citizens, Hamdi and Padilla are entitled to file petitions for a writ of habeas corpus -- the time-enshrined means by which prisoners can contest their confinement. Which leads to the second major question: If they have the right to file for writs, and the courts have decided they do, do they also have the right to consult with attorneys?

Here the cases have diverged. In Richmond, the U.S. Court of Appeals for the 4th Circuit, usually considered the nation's most conservative, effectively ruled this month that Hamdi does not. "What you do not owe him," said Washington attorney David B. Rivkin Jr., who filed an amicus curiae brief supporting the government's position, "is access to Johnnie Cochran."

But in New York, U.S. District Judge Michael B. Mukasey, presiding over the case now known as Padilla v. Rumsfeld, handed down a split decision. Bush acted lawfully in detaining Padilla, the judge ruled, but Padilla "must have the opportunity to present evidence that undermines the reliability of the Mobbs Declaration." And "the only practicable way" to do that, he continued, was for Padilla to have access to his attorneys.

They now number two because Newman, in court the day after Ashcroft's news conference, "finally figured out that this was major," she recalled. She also noticed that "the government table was filled, all these attorneys, a lot of bodies. My table, there's only me. I don't even have a client."

So Mukasey agreed to appoint Andrew Patel, a veteran criminal defense attorney who also practices in federal court, as co-counsel.

They have spent hundreds of hours on the case and filed hundreds of pages of legal papers. The government has appealed the judge's decision to the U.S. Court of Appeals for the 2nd Circuit, and the attorneys filed their first appellate briefs last week. Both in their fifties and graduates of the New York Law School, they are outwardly the odd couple. Patel is bearish and rumpled; Newman, petite and fashion-conscious. He is calm, deliberate, happy to discourse on constitutional issues; she is in constant motion and unable to stay off a phone. What they shared, aside from a lot of takeout food, was a sense of outrage about what was happening to their client.

It is incorrect to say they were "defending" him, because he hadn't been charged with a crime. "What we aspire to, our hope, is to be able to defend Jose Padilla," Patel said. He scoffed at the Mobbs Declaration, the sole piece of public evidence that supports the detention. Mobbs's own footnotes conceded that the government's "confidential sources" probably were not "completely candid," that one source subsequently recanted and another was being treated with drugs, and that their information may have been an attempt to mislead interrogators.

"Someone who's a confirmed liar and someone else who's on drugs and one of the two has recanted," Patel snorted. "You really think someone should be locked up for a year in solitary confinement based on that?"

"What we're asking for Mr. Padilla," he said, "is something I consider a very core American value: A guy's entitled to his day in court. That's how we do things here. We don't just throw people in jail because we think or believe they're bad."

The Nazi Precedent

Except during wartime, the argument on the other side goes. "We're talking about a fundamentally different legal proceeding," said Rivkin, who served in the Reagan Justice Department. "Liberty and order are balanced differently in wartime and in peacetime, and the courts recognize that."

During war, captured enemies are either lawful combatants, soldiers who adhere to such rules of war as wearing identifiable uniforms -- in which case they become prisoners of war -- or unlawful combatants. Al Qaeda and Taliban operatives fall into the latter category, the United States has decided, and thus have fewer legal rights than POWs and far fewer than criminal defendants.

In arguing that Padilla and Hamdi were being treated appropriately, government lawyers relied on a World War II precedent called Ex Parte Quirin. The case involved German saboteurs who landed in New York and Florida and buried their uniforms but were captured before they could act. At least one was an American citizen. The Supreme Court upheld their designation as unlawful combatants, claims to citizenship or arrest on U.S. soil notwithstanding. All were convicted; six were executed.

But the American Bar Association, which established a Task Force on Treatment of Enemy Combatants, pointed out key differences between the Quirin saboteurs and Padilla: The Nazis did have their day in court, albeit a military court, and they had access to their lawyers.

So did young John Walker Lindh, like Hamdi a citizen captured in a combat zone in Afghanistan, and shoe bomber Richard Reid; both pleaded guilty. Zacarias Moussaoui, on trial in Virginia, is representing himself but has access to attorneys to advise him.

In wartime, government supporters say, all suspected terrorists need not be treated the same way. The ABA task force, however, found it "both paradoxical and unsatisfactory" that Hamdi and Padilla, charged with nothing, had fewer rights than those charged with such serious crimes.

The Bush administration said that its primary reason for holding Padilla incommunicado was his value as an intelligence source. In a declaration arguing that Padilla should not be allowed to consult with lawyers, Vice Adm. Lowell Jacoby, director of the Defense Intelligence Agency, said that successful interrogation required a continuing "atmosphere of dependency and trust between the subject and interrogator." Even brief interruptions might jeopardize it.

"It appears that they're using some form of mental coercion," was Newman's interpretation.

Prolonged isolation can in itself violate a prisoner's rights under the U.N. Convention Against Torture, said a spokesman for Amnesty International. The organization condemned Padilla's treatment on the one-year anniversary of his solitary confinement, and Amnesty International groups in 49 countries have launched letter-writing campaigns to the U.S. government in his behalf.

Lawyers and legislators have also called on the government to change its tactics. At its annual meeting, the ABA by an 83 percent majority adopted its task force's recommendations that citizens and residents detained as enemy combatants be given "meaningful judicial review of their status," including access to counsel. Rep. Adam Schiff (D-Calif.) incorporated similar provisions into a bill he introduced. None of these initiatives seems to have had much effect.

"It's important to acknowledge that there are competing interests here," said Ruth Wedgewood, a Johns Hopkins University international law professor whose amicus brief in the Hamdi case supported the government. "There really is violence out there. I can imagine a case in which the government would be so cowed by the [civil liberties] critique that it wouldn't do what it had to do."

She and other legal observers expect the enemy combatant question to reach the Supreme Court. Padilla's attorneys are both members of that bar and could argue before the high court. But Newman did not want to speculate about it.

"I didn't buy my suit yet," she said with a shrug. "My personality is, deal with the issue at hand."

A Full-Time Case

The issue at hand is complex enough.

Padilla can't have visitors or use a phone. When Newman asked the Pentagon if she could write to him, she was assured that she could. But would he get the mail? That, she was told, could not be guaranteed. So while she and Patel send copies of all their legal motions to Padilla in South Carolina, they assume that he has never seen them.

As solo practitioners up against a bevy of government attorneys, they sometimes have felt outgunned. Newman has stopped taking new cases to concentrate on Padilla's. She and Patel work at his office in Manhattan, at her office in Jersey City, at her exurban home office; they work evenings and weekends and pull the occasional all-nighter. She stays in phone contact with Padilla's "distraught" mother.

Early on, Newman put the word out through legal channels that she needed to consult experts on human rights law and military law, "things that certainly didn't come up in my law school classes -- I'd heard of the Geneva Conventions, but I hadn't read them."

In response, a cadre of volunteers -- including Eugene Fidell of the National Institute of Military Justice, Donald Rehkopf Jr. of the National Association of Criminal Defense Lawyers and law professors around the country -- has been "remarkably helpful," Newman said. "It gives you faith. People always damn attorneys, but they are willing to work awfully hard for free."

But "in the end, our names are on the brief," Newman added. "We write it. It's our ideas."

She had the option, when Padilla was transferred from civilian to military custody, of trying to unload this case. She could have asked the judge to release her and, if he had agreed, moved on to other clients who could pay several times the $90 an hour that she and Patel receive in this role as federal public defenders.

But she was too angry. "If I had let it go," she said, "it wasn't like he was going to find another lawyer. He would have just dropped out of sight. What voice would he have to say, 'What's happening here is wrong'?"

She had scant time to debate. The next round in the appeal is response briefs, due next month, with reply briefs due on Labor Day and oral arguments to be heard in the fall.