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Beyond Padilla terror case, huge legal issues

His detention and interrogation in the US raises basic constitutional questions.

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"We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb,' " he said. Padilla was a "known terrorist" who had trained with Al Qaeda, studied how to wire explosives, and researched radiological dispersion devices, he told the world.

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What he didn't say was that Padilla had been locked in a solitary confinement cell in New York City for the past month and that Padilla was only now being taken into military custody on the eve of a scheduled court hearing that would have required the government to legally justify Padilla's continued detention.

Instead, President Bush declared Padilla an "enemy combatant" who posed a "continuing, present, and grave danger" to US national security. The president said Padilla possessed intelligence information that could help prevent Al Qaeda attacks on the US.

Some officials offered a less dramatic take on the dirty-bomb plot than Mr. Ashcroft's. Then-Deputy Defense Secretary Paul Wolfowitz told the CBS "Early Show" that Padilla was "in the very early stages of his planning." He added, "I don't think there was actually a plot beyond some fairly loose talk."

Nonetheless, the dirty-bomb announcement sent shock waves across the country and immediately helped justify the use of coercive interrogation techniques against Padilla, analysts say. And it gave news reporters an irresistible tag line to link to Padilla's name – "dirty bomber."

The dirty-bomb stigma would later help the government battle constitutional challenges to Padilla's military detention, according to many legal scholars. And it helped rally public support for an array of tough counter-terror policies by feeding national anxiety about possible terrorist use of weapons of mass destruction.

Perhaps most important, these analysts say, the Padilla case presented US officials with a situation that resembled the often discussed "ticking time bomb" scenario. Under this hypothetical plot, a terrorist has been captured after planting a ticking time bomb in a busy public location. Officials face the moral dilemma of either using traditional noncoercive interrogation methods that can take hours, days, or weeks and risk the deaths of thousands of innocent people or resort to brutal tactics to quickly obtain information to discover and defuse the bomb. Under the scenario, saving thousands of lives is viewed as the greater good that justifies using torture against the terrorist.

Mr. Bush has repeatedly stated that his administration does not use torture. But he has also acknowledged that in certain instances harsh interrogation methods have been authorized and used to help protect the nation.

Although civil libertarians protested Padilla's detention without charge, there was no significant public outcry.

Terror war innovation: long detention

The dirty-bomb allegation emerged from information obtained through a Bush administration innovation in the war on terror. That innovation called for the open-ended detention of terror suspects to facilitate aggressive, prolonged interrogations. The questioning was often accompanied by specially authorized harsh interrogation techniques, including isolation, sensory deprivation, and stress positions, among others, according to former interrogators.

No judge in an American courtroom could permit the introduction of information gathered under such coercive techniques, in part because they carry a high risk of producing unreliable results. If the technique is coercive enough, a subject will say whatever it takes to make it stop, former interrogators say. In addition, the rules of procedure and long-established constitutional protections forbid the use of coerced statements as evidence in a trial.

But the rules of the courtroom are not necessarily the rules of the interrogation room. Senior Bush administration officials made clear that once an individual is classified as an enemy combatant, he is no longer entitled to the protections of the Geneva Conventions and the US Constitution.

Because Padilla was held in solitary confinement under secret conditions, no one was aware of what was happening to him. The initial constitutional debate revolved around whether Padilla had a right to consult a lawyer or whether the government could hold him in isolation indefinitely.

Do presidents have the right to hold citizens indefinitely?

When Jose Padilla's case came before the US Supreme Court in 2004, the issue was whether the president had constitutional authority to hold without charge an American citizen arrested on US soil. The case was tossed out on a technicality. But on the same day that the Padilla outcome was announced, the court released its decision in a similar case of a US citizen captured on an Afghanistan battlefield.

In Hamdi v. Rumsfeld, a four-justice plurality ruled that the president could hold American citizens as enemy combatants in the US provided they were given a fair hearing to challenge the government's actions.

Justice Antonin Scalia believed this approach was deeply flawed. Although he voted with the majority to dismiss Mr. Padilla's case, Justice Scalia wrote a 27-page dissent in the Hamdi case.

If a citizen takes up arms against the US in a time of war, he or she should be tried for treason, the justice wrote. If fast-developing events prevent such a prosecution, Congress has the power to suspend habeas corpus and other protections of the Constitution temporarily. But the commander in chief's authority alone is not enough to accomplish this, Scalia wrote.

The Founding Fathers distrusted military power permanently at the president's disposal, Scalia said. The Founders wrote a series of safeguards into the Constitution, dividing the power over the military between the executive and legislative branches.

"A view of the Constitution that gives the executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions," Scalia wrote.

Although Scalia's view has not carried the day at the high court, it has sparked intense speculation about what might happen should the justices once again consider Padilla's case. Many high court analysts believe five or more justices would be sympathetic to arguments raised by Padilla's lawyers. But no similar case has arrived at the court.

Should the court address the issue in a definitive way, the answer would produce a constitutional landmark.

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