Appeal of Detained Terrorism Suspect to Be Heard Today

By Jerry Markon
Washington Post Staff Writer
Tuesday, July 19, 2005

For more than three years, Jose Padilla, an alleged al Qaeda operative, has been held without trial, much of the time without access to a lawyer.

A former Chicago gang member and Muslim convert, Padilla was arrested at O'Hare International Airport in May 2002. A month later, he was designated an "enemy combatant" by President Bush and sent to a naval brig in South Carolina.

Today, the U.S. Court of Appeals for the 4th Circuit will convene in Richmond to consider a question with vast implications for civil liberties and the fight against terrorism: whether in the absence of criminal charges the president can indefinitely detain a U.S. citizen captured on U.S. soil.

Federal prosecutors assert that Bush not only had the authority to order Padilla's detention but that such power is essential to preventing attacks.

"In the war against terrorists of global reach, as the Nation learned all too well on Sept. 11, 2001, the territory of the United States is part of the battlefield," prosecutors argued in legal briefs. The government contends that Padilla trained at al Qaeda camps and was planning to blow up apartment buildings in the United States.

Attorneys for Padilla, joined by a host of civil liberties organizations, say that his detention is illegal. If not constrained by the courts, they argue, it could lead to the military being allowed to hold anyone, from protesters to people who check out what the government considers the wrong books from the library.

"Once you open the door to a power like that, where does it end?" Andrew Patel, one of Padilla's attorneys, asked in an interview. "There is a certain bedrock way we do things as Americans. If we believe someone has done something bad, we take them to court and prove it. It's a grade-school civics thing."

The debate has featured the unusual spectacle of former attorney general Janet Reno, whose Justice Department prosecuted major terrorism cases during the Clinton administration, weighing in legally on behalf of someone the Bush administration calls a notorious terrorist. She and several other former Justice officials filed a brief supporting Padilla's effort to challenge his detention.

The Bush administration "claims a virtually unlimited right to ignore Congress's judgment about what powers are necessary to protect the country against terrorist attack," the brief said, arguing that Padilla could be charged under a variety of laws in the criminal justice system.

Padilla is one of two U.S. citizens held as enemy combatants since the terrorist attacks on the World Trade Center and Pentagon. The other, Yaser Esam Hamdi, was released and flown to Saudi Arabia last year after the Supreme Court upheld the government's power to detain him but said he could challenge that detention in U.S. courts.

Hamdi's and Padilla's cases are two among several recent ones that have raised the most significant wartime civil liberties issues since World War II and that are gradually clarifying presidential powers to fight the war on terrorism. But there is a key difference between the two: Hamdi was captured on a battlefield in Afghanistan with forces loyal to that country's former Taliban rulers, while Padilla was arrested in the United States.

With the Justice Department seeking to extend the detention power it won in the Hamdi case to U.S. citizens captured domestically, legal experts are closely watching the appeals court's decision, along with a likely Supreme Court review after that.

"I think Padilla is mighty important. This is the case that really matters most," said Stephen A. Saltzburg, a law professor at George Washington University.

The government originally described Padilla as plotting with al Qaeda to detonate a radioactive "dirty bomb" but has since focused on allegations that he planned to blow up apartment buildings by filling them with natural gas.

In briefs filed with the 4th Circuit, prosecutors say Padilla researched building an atomic bomb but that al Qaeda leaders thought that the operation was too complicated. Al Qaeda operations chief Khalid Sheik Mohammed suggested that Padilla instead focus on the apartment building plan, the briefs say.

Padilla "accepted the assignment," the court papers say, and departed for the United States with $10,500 in al Qaeda cash, along with travel documents and a cell phone. His journey through the U.S. legal system began when he was arrested by the FBI on a material witness warrant in connection with a terrorism investigation in New York.

Bush designated Padilla an enemy combatant on June 9, 2002, and Padilla's attorneys challenged his detention in federal court in New York. In 2003, the U.S. Court of Appeals for the 2nd Circuit ruled for Padilla.

The government then appealed to the Supreme Court, and the court ruled that Padilla's petition should have been filed in South Carolina. After Padilla refiled there, a federal judge this year ordered the government to charge Padilla with a crime or release him within 45 days.

"To do otherwise," the judge wrote, "would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties."

The government is now appealing that decision to the Richmond-based 4th Circuit, which is generally regarded as the nation's most conservative appellate court. The 4th Circuit ruled in the government's favor in the Hamdi case, saying that the military -- not the courts -- had sole authority to wage war and that courts should defer to battlefield judgments. The names of the three 4th Circuit judges who will hear Padilla's case will not be announced until today.

Donald G. Rehkopf Jr., co-chairman of the military law committee of the National Association of Criminal Defense Lawyers, which filed a brief on Padilla's behalf, said the president is seeking "the kind of executive power that the king of England had, which is why we had the Revolution in the first place."

That would mean, he said in an interview, that "they can arrest you in the middle of the night and take you away."

But Richard A. Samp, chief counsel for the Washington Legal Foundation, a conservative public-interest law firm that intervened for the government, said the enemy combatant designation is needed in situations where investigators know someone is a threat but can't make a case in a traditional criminal court.

If the government loses the argument on Padilla, Samp said, "I think public safety would be endangered."

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