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Judges Question Detention Of American, Jose Padilla'Enemy Combatant' Sham

Judges Question Detention Of American, Jose Padilla


November 18, 2003
Copyright © 2003
THE NEW YORK TIMES. All rights reserved. 

Two federal appeals court judges were hostile to the Bush administration's position yesterday as the government argued that the requirements of the antiterror effort meant that the president could indefinitely detain an American who was arrested in this country as an "enemy combatant" and deny him contact with his lawyer.

"As terrible as 9/11 was, it didn't repeal the Constitution" one judge, Rosemary S. Pooler, said.

The judges made their comments as a three-judge panel of the United States Court of Appeals for the Second Circuit, in Manhattan, began considering the case of Jose Padilla, an American arrested last year at O'Hare International Airport near Chicago. The case drew worldwide attention when Attorney General John Ashcroft announced in June 2002 that the government believed that Mr. Padilla was planning to explode a radiological "dirty bomb" in the United States.

Another judge on the panel, Barrington D. Parker Jr., said that if the courts accepted the government argument "we would be effecting a sea change in the constitutional life of this country."

A lawyer for the government, Paul D. Clement, said the nature of the conflict meant that military principles, not the usual rules of the American criminal courts, had to be applied to protect the country properly.

"Al Qaeda made the battlefield the United States," Mr. Clement told the panel in a crowded courtroom. "And there's every indication they want to make the battlefield the United States again."

The third judge on the panel, Richard C. Wesley, at times sparred with the other judges, suggesting that the terrorist attacks of Sept. 11, 2001, were different from other conflicts.

"This happened on our soil," Judge Wesley said.

Mr. Clement, the deputy solicitor general, expanded arguments that government lawyers made when a federal district judge began considering the case last year. He said the president's power as commander in chief had always included the power to detain military enemies.

Lawyers arguing on behalf of Mr. Padilla told the judges that the government was distorting principles of American liberty by expanding battlefield concepts to civilian life.

One lawyer, Jenny S. Martinez, said, "The president seeks an unchecked power to substitute military power for the rule of law."

Both sides appealed parts of rulings by Michael B. Mukasey, chief judge of the Federal District Court in Manhattan. Judge Mukasey said President Bush had the authority to detain Mr. Padilla if there was "some evidence" he was involved in terrorism, but also said Mr. Padilla had a right to meet with his lawyers.

Mr. Padilla, a former gang member in Chicago and a convert to Islam with a long criminal record, was arrested after traveling from Pakistan. On May 8, 2002, he was taken to New York on a material witness warrant. In June, Mr. Bush declared him an enemy combatant, and he was moved from a federal jail in Lower Manhattan to a Navy brig in Charleston, S.C. He has been held incommunicado since then.

Yesterday, all three judges on the panel indicated that they viewed the case as a crucial test of government powers. The appeal on Mr. Padilla's behalf has attracted wide attention because he is the only American taken into custody in this country and declared an "enemy combatant."

The appeal drew added interest after the Supreme Court decided last week to consider whether the detainees at the naval base in Guantánamo Bay, Cuba, could challenge their status in civilian courts. That decision was seen by some experts as an expression of a new willingness by the courts to challenge the administration's contention that the nature of the antiterror effort made the administration the final arbiter on many questions over treating detainees.

Judge Pooler and Judge Parker were appointed to the federal bench by President Bill Clinton. Judge Parker, who was elevated to the appeals court from the Federal District Court in Manhattan by Mr. Bush, at times suggested that he was also alarmed by the government's arguments.

Judge Parker made several of those comments after Mr. Clement argued that the court would be mistaken to test Mr. Padilla's detention against usual civilian rules. Mr. Clement is the principal deputy to Solicitor General Theodore B. Olson. The government has said Mr. Padilla was "associated with Al Qaeda," met officials of the group in Afghanistan and received training in explosives in Pakistan.

"The normal system does not apply," Mr. Clement said.

Judge Parker then said that "what troubles me" was what he described as "the ease with which" Mr. Clement transposed military rules into the civilian sphere. Judge Parker said he believed that only Congress could make what he described as an unprecedented decision that would permit the indefinite detention without charges of an American arrested in this country.

Mr. Clement answered that the government was proposing no change at all, because the detention without charges of people captured in war had been recognized "over and over again in military engagement after military engagement."

At times in the more than two hours of legal arguments, it appeared that Judges Parker and Pooler were debating as much with Judge Wesley as they were with the lawyers.

'Enemy Combatant' Sham

November 19, 2003
Copyright © 2003
THE NEW YORK TIMES. All rights reserved. 

The Bush administration insists that it can hold American citizens in secret as long as it wants, without access to lawyers, simply by calling them "enemy combatants." A New York federal appeals court heard a challenge to that policy this week by the so-called dirty bomber, Jose Padilla. The administration's position makes a mockery of the Constitution and puts every American's liberty at risk. It is important that the court strike it down, and give Mr. Padilla the rights he has been denied.

Mr. Padilla is an American citizen who was taken into custody in Chicago in May 2002. The government suspects him of being part of a "dirty bomb" plot by Al Qaeda, but it has not charged him. Instead, it has labeled him an enemy combatant and locked him up in a naval brig in South Carolina. He has been held there nearly 18 months, with no indication of when he will be tried or released. He has not been allowed to meet with a lawyer, despite a lower court ruling that he should be.

Of all the post-Sept. 11 denials of civil liberties, the enemy combatant doctrine is among the worst. It gives the president untrammeled authority to lock up Americans merely by asserting that they are part of a terrorist plot. In its argument to the United States Court of Appeals for the Second Circuit this week, the government insisted that military-style rules like the enemy combatant doctrine now apply to American citizens, even on American soil, because Al Qaeda has "made the battlefield the United States."

Governments are always tempted to detain perceived enemies without charges, hold them incommunicado and deny them counsel. But the framers of the Constitution knew that if the government was allowed to act on those impulses, the result would be tyranny. That is why they built into this nation's founding document the very rights the Bush administration is intent on taking away.

Fortunately, it appears from this week's argument that the appeals court panel saw through the administration's spurious justifications. "As terrible as 9/11 was,"` Judge Rosemary Pooler observed, "it didn't repeal the Constitution."

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