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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 / January 29, 2009

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

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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.

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.