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| Defense attorney Andrew Patel did not mount a defense for Jose Padilla (not pictured) in the three-month terror-conspiracy
trial in Miami. Roberto Schmidt/AFP/Getty images/file |
Beyond Padilla terror case, huge legal issues
His detention and interrogation in the US raises basic constitutional questions.
from the August 15, 2007 edition
Page 3 of 4
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.
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."
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.
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08/15/07 |
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