Will Padilla's case be heard?

The Justice Department says a victory by the convicted terrorist would harm national security.

By , Staff writer of The Christian Science Monitor

Convicted Al Qaeda conspirator José Padilla is fighting to get his day in court.

The man once accused of plotting to detonate a radiological "dirty bomb" in the US is pressing for a full judicial examination of some of the most controversial aspects of the Bush administration's war on terror.

Lawyers working on Mr. Padilla's behalf have filed a 43-page civil lawsuit seeking to hold former Defense Secretary Donald Rumsfeld and others responsible for the years Padilla spent in an isolation cell in the Charleston, S.C., naval brig while being held without charge as an enemy combatant.

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Padilla, a US citizen, wants a judge to declare that what happened to him during the Bush administration was illegal and unconstitutional.

At a hearing in Charleston on Thursday, Justice Department lawyers will ask a federal magistrate judge to dismiss the complaint, including all allegations of constitutional violations.

The stakes are too high to allow such litigation to proceed, they argue in their brief to the court. A Padilla victory "would strike at the core functions of the political branches, impacting military discipline, aiding our enemies, and making the United States more vulnerable to terrorist attack," the government's brief says.

"Adjudication of the claims pressed by [Padilla] in this case would necessarily require an examination of the manner in which the government identifies, captures, designates, detains, and interrogates enemy combatants," the brief says.

Obama overhauls some Bush policies

Critics of the Bush administration have been calling on President Obama to authorize an aggressive investigation into antiterror tactics authorized by President Bush. But the Obama administration has seemed cool to the idea.

In the meantime, Mr. Obama has undertaken a broad overhaul of US national security policy related to terrorism. Last week, he ordered an end to secret CIA prisons, the closing of the terror prison camp at Guantánamo within a year, and an immediate ban on torture and other extreme interrogation techniques.

Padilla's lawyers have filed a similar lawsuit in San Francisco against John Yoo, a former Justice Department official who wrote a series of legal memos authorizing harsh interrogation tactics. On February 6, a federal judge will consider a motion by Justice Department lawyers to dismiss that case.

In the Charleston lawsuit, Padilla is suing those he alleges are responsible for his treatment – which included two years in extreme isolation combined with sleep and sensory deprivation to prepare him for interrogations. He is seeking a token $1 in damages from each named defendant, and a judicial ruling on the legality of the government's conduct.

"The issues of Padilla's extreme interrogations and punitive conditions of confinement were never addressed by this court, the Fourth Circuit, or any other court," Padilla's lawyers say in their brief.

Lasting effects

They say the ordeal left Padilla psychologically disabled.

"This guy had nothing. He was utterly isolated and had no clue that there was anybody out there advocating for him. He was just there forever," says Michael O'Connell of Charleston, one of Padilla's lawyers. "I don't think I could have stood that and come out sane."

Mr. O'Connell adds: "I can't think of another time in this country that that ever happened to an American citizen."

The Justice Department says the case should be thrown out of court because government officials are entitled to qualified immunity from such lawsuits.

Was Padilla an 'enemy combatant?'

One area likely to spark heated debate in Thursday's hearing is whether the constitutional rights at issue were clearly established in 2002 when Padilla was taken into military custody.

The government argues that it was not clearly established that an enemy combatant would enjoy the array of constitutional rights claimed by Padilla. Under the department's view, Al Qaeda members and associates are unlawful combatants who are not entitled to constitutional and other legal rights.

Padilla's lawyers start from a different standpoint. They say that Padilla is not, and never was, an enemy combatant. As a US citizen taken into custody on American soil he is entitled to the full array of constitutional protections, they say.

"It was clearly established that military agents could not enter a civilian jail, seize a man from the civilian justice system, transport him to a military prison, detain him there indefinitely without criminal charge or conviction, deprive him of contact with attorneys or family, take from him his ability to fulfill the minimum requirements of his religion, and subject him to a program of extreme interrogations, sensory deprivation and punishment," Padilla's brief says.

Authorities say he was part of 'dirty bomb' plot

Padilla was arrested in 2002 as he stepped off a plane at Chicago's O'Hare Airport. Officials said he was part of an Al Qaeda plot to detonate a radiological "dirty bomb" in a US city. But that plot has never been verified.

President Bush designated him an "enemy combatant," and ordered him held and interrogated at the Charleston brig.

Lawyers working for Padilla have challenged the legality of his detention. The case went to the US Supreme Court, but the high court ruled on a lesser issue. In a related case, the justices said US citizens who take up arms against the US can be held as enemy combatants. But the court also declared: "Indefinite detention for the purpose of interrogation is not authorized."

The Fourth US Circuit Court of Appeals later ruled that Padilla could be held as an enemy combatant despite his arrest in the US. But it did not address issues related to his interrogation and treatment.

The decision was appealed to the Supreme Court. But Padilla was transferred to the criminal justice system in Miami to stand trial on terror conspiracy charges.

He was convicted in August 2007 and is serving a 17-year prison term. His conviction is under appeal.

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