Beyond Padilla terror case, huge legal issues
His detention and interrogation in the US raises basic constitutional questions.
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In February 2004, then White House Counsel Alberto Gonzales told a meeting of the American Bar Association that citizens who take up arms against America don't deserve legal counsel. Any individual rights, he said, "must give way to the national security needs of this country to gather intelligence from captured enemy combatants."Skip to next paragraph
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Mr. Gonzales added, "The stream of intelligence would quickly dry up if the enemy combatants were allowed contact with outsiders during the course of an ongoing debriefing. The result would be the failure to uncover information that could prevent attacks," he said. "This is an intolerable cost, and we do not believe it is one required by the Constitution."
Two months later, lawyers were arguing Padilla's case before the US Supreme Court. Justice Ruth Bader Ginsburg wanted to know if there was any check on the powers being claimed by the executive branch to collect intelligence through coercive interrogations. "Suppose the executive says, 'Mild torture, we think, will help get this information'?" she asked. "Some systems do that to get information."
"Well, our executive doesn't," said then-Deputy Solicitor General Paul Clement.
A few minutes later, Justice Antonin Scalia, an anchor on the court's conservative wing, said he found nothing in his research to support Bush's assertion of unchecked authority to wage the war on terror. "It doesn't say you can do whatever it takes to win the war," he said.
His comment raised a huge red flag for the administration. That evening, coincidentally, the CBS program "Sixty Minutes II" broadcast the first images of detainee abuses at Abu Ghraib in Iraq.
A month later, at the height of the Abu Ghraib scandal and with Padilla's case pending at the Supreme Court, the Justice Department held a highly unusual press conference. Officials announced that after two years of interrogation, Padilla had confessed to involvement in the dirty-bomb plot and other activities with Al Qaeda.
"We now know much of what Jose Padilla knows. And what we have learned confirms that the president of the United States made the right call," said James Comey, then deputy attorney general at the Justice Department.
Padilla's Supreme Court case was dismissed by a 5-to-4 vote on a technicality. The justices said Padilla's lawyers should have filed their suit in South Carolina rather than New York. Scalia provided the key fifth vote in a decision that effectively allowed the administration to continue to hold and question Padilla in the brig.
Padilla's lawyers filed a new suit in South Carolina and, by 2005, were again at the steps of the Supreme Court. But rather than allow an airing of the issue at a high court that many analysts believe to be sympathetic to Padilla, the administration transferred him from military custody into the criminal-justice system.
With jury deliberations about to begin in Miami, legal scholars expect more major twists and turns in the Padilla saga. Among moves to watch:
•If Padilla is acquitted, will the government try to return him to the brig?
•If Padilla's lawyers file a civil suit to try to get his military detention case before the Supreme Court again, will the government argue that such a suit must be immediately dismissed to avoid revealing state secrets?
When Federal Bureau of Investigation agents first took Padilla into custody, administration officials thought they had nabbed an intelligence prize. Five years later, legal and intelligence analysts say, these claims look increasingly hollow as the administration maneuvers to keep Padilla from having a meaningful day in court. Its tactics are also keeping the public from knowing the truth about Padilla and the dirty-bomb plot, they say.
"You don't go on the Internet and spend a day reading and become an expert on how to put together a dirty bomb," says Mr. Johnson, the counterterrorism expert. "I'm not knocking folks who work at Taco Bell, but that's not a place you'd go to ramp up your skills" as a nuclear jihadist.
• Parts 1 and 2 appeared Monday and Tuesday.
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.