Battle Brews Over Detainee's Rights

Battle Brews Over Detainee's Rights

By Tom Brune
WASHINGTON BUREAU

August 6, 2003 (Newsday) Washington - Accused "dirty bomb" terrorist suspect Jose Padilla has been isolated in a naval brig for more than a year, ever since President George W. Bush classified him as an "enemy combatant" and called him a "threat to the nation."

But last week, nine thick friend-of-the-court briefs were filed in Padilla's appellate case, arguing against what they see as just as serious a threat to the nation: Bush's assertion that he can, as commander-in-chief, order the military to detain an American citizen picked up on U.S. soil indefinitely without charges, a trial or access to a lawyer.

"The precedent the executive [Bush] asks this court to set, represents one of the gravest threats to the rule of law, and to the liberty our Constitution enshrines, that the nation has ever faced," said one brief by 14 retired federal appellate judges and former government officials, including Abner Mikva, Harold Tyler and Philip Allen Lacovara.

Other briefs argued that Bush's assertion is "unprecedented and shocks the conscience," is "startling" in its implications, runs "brazenly afoul" of constitutional principles, and poses "a grave threat to the constitutional rights of all Americans."

The strong language of the briefs - filed by dozens of law professors, libertarian and rights groups, lawyers' associations, international law experts and others - sets the tone for the constitutional battle being fought in the 2nd Circuit Court of Appeals in Manhattan over Padilla's right to challenge his detention.

Federal authorities quietly arrested Padilla as he arrived on a flight to Chicago from Europe on May 8, 2002, accusing him of meeting with al-Qaida terrorists in a plan to set off a radiological bomb here. For a month, he was jailed as a material witness in New York. On June 9, 2002, Bush designated Padilla an "enemy combatant," a vaguely defined status, saying he was a danger and possible source of intelligence about terrorism, and abruptly placed him under military control.

The court is hearing an appeal by the government of the Dec. 4 ruling by U.S. District Court Judge Michael Mukasey that Padilla has the right to meet with an attorney to help him challenge his detention.

The court will hear arguments in the case some time after mid-October by Donna Newman and Andrew Patel, Padilla's court-appointed lawyers, and Justice Department attorneys. The case very likely will rise to the Supreme Court.

Justice Department attorneys argue the president's power to detain Padilla is based on "settled historical practice," sanctioned by the laws and customs of war, and a well-established exercise of the president's constitutional powers as commander-in-chief.

But Joseph Onek, a former State Department official and consultant on three of the briefs, said the government is seeking to extrapolate the powers of the president in a way that is not only without congressional authorization but in defiance of a law enacted by Congress to prohibit citizens from being detained without hearings or lawyers.

"Under our constitution, we don't allow those extrapolations," said Onek, who works with the Constitution Project and The Open Society Policy Center, nonprofit policy and research groups.

The amicus briefs challenge the president's assertion of his powers from a constitutional point of view, as argued in the brief filed by the American Bar Association, and under international law, as in a brief by experts including Stephen Saltzburg, general counsel for the National Institute of Military Justice.

Among those filing briefs is a collaboration of libertarian groups, including the Cato Institute and Rutherford Institute on the right, the Constitution Project in the middle and People for the American Way and Center for National Security Studies on the left.

Another brief was filed by several groups including the Center for Constitutional Rights, the Asian American Legal Defense and Education Fund, the National Lawyers Guild and 130 law professors.

Other briefs were filed by a group of about three dozen law professors, the American Civil Liberties Union, and even the leftist Sparticist League, according to the Padilla docket. No groups filed briefs in support of Bush, according to the docket.

Although the Bush administration has won most of the legal challenges to its war on terrorism so far, Onek spoke with optimism about this case, saying authors of the briefs hope to create a "Michigan effect."

By including a broad sampling of legal thought on Padilla, Onek said, the attorneys are attempting to recreate the successful influence of the dozens of briefs filed in favor of college diversity in the Supreme Court's split decision in the University of Michigan affirmative action cases.

The nine briefs filed in Padilla's case fall short of the more than 60 filed in the Michigan cases, but the support is welcomed by Newman.

"I think it is significant," she said. "It shows not only how the parties feel about the issue, but how the rest of the community feels about it."

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