Legal Limbo

Jose Padilla's lawyers, if not their client, get their day in court.

Tue Nov. 18, 2003 1:00 AM PST

After spending a year and a half incommunicado in a South Carolina naval brig, Jose Padilla, the so-called "dirty bomber," may be a little closer to having his day in court. On Monday a federal court of appeals heard arguments that the Bush administration, in holding Padilla, a U.S. citizen, without charges and without access to counsel, is violating the Constitution.

The government has styled Padilla and "enemy combatant," and argues that, as such, he has forfeited his constitutional due process rights. He was picked up at Chicago's O'Hare airport in May, 2002, on suspicion of plotting under Al Qaeda direction to set off a radioactive bomb in the United States.

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A federal court found last year that while the government was within its rights to hold Padilla indefinitely, it erred in denying him access to counsel. The government appealed that ruling, hence Monday's hearing of Padilla v. Rumsfeld, in which the 2nd U.S Circuit Court of Appeals in New York will consider the limits of executive discretion in the war on terror.

Early signs were that the judges weren't buying the government's arguments. Judge Barrington Parker told the court that the case presents vitally important constitutional questions with implications that go far beyond the specifics of Padilla's situation.

"Were we to construe the Constitution as permitting this kind of power in the executive with only modest judicial review, we would be effecting a sea change in the constitutional life of this country and making changes that would be unprecedented in civilized society."

As Mother Jones noted in its March/April edition, the case isn't just about Padilla, an American Muslim with a rough-and-tumble Puerto Rican background, but rather our whole system of justice.

Padilla is one of an unhappy few dubbed enemy combatants in the civil liberties crackdown following September 11th. Another, Yasser Esam Hamdi of Louisiana, was captured in Afghanistan during the U.S. invasion. Last January a federal appeals court ruled that the president had the authority to detain U.S. citizens in military custody if proven to be a threat to national security. Ali Salem Kahlah Al-Marri, a citizen of Qatar, is also being held in enemy combatant status after being of acting as al-Qaeda sleeper agent.

Last December a U.S. District Court Judge ruled that Padilla's attorneys had the right to meet with their client. Deputy Solicitor General Paul D. Clement and two Assistant U.S. Attorneys argue that a meeting with lawyers would interrupt the government's interrogation with Padilla, noting that Congress, in the days after Sept. 11, passed a resolution authorizing the president to use "all necessary and appropriate force" in the fight against terrorism. The prosecution argues that Padilla gave up his constitutional rights when he supposedly plotted against the United States.

But Padilla's defense is fighting the old-fashioned way, by sticking to the Constitution. One of Padilla's lawyers Andrew Patel, keeps it simple, arguing for the rights of due process.

"What's astounding about this case is that the American government says that it has the authority to hold an American citizen in an American prison without his having the opportunity to have his day in court...We're talking about fairness. When you put someone in jail, he has a right to be heard. That's the principle of due process."

Now it remains to be seen whether the president's executive power can be kept in check by the courts. Padilla isn't seeing daylight anytime soon, but his defense is encouraged by the Supreme Court's recent decision to hear petitions involving 600 detainees at the Guantanamo Bay Naval Base in Cuba, which may supply a helpful legal precedent.

The Padilla case galvanized critics on the political right and left, from the libertarian Cato Institute to the progressive Lawyers' Committee for Human Rights. Summing up what's at stake here, legal columnist Edward Lazarus writes that these post 9-11 detainment cases will shape the future of constitutional rights.

"Recently, the Supreme Court granted review of the cases arising from the detention of aliens captured in Afghanistan and now imprisoned at Guantanamo. In resolving these cases, the Supreme Court will be testing nothing less than its own and the nation's commitment to the rule of law and the ideal of Americanism that may yet inspire a planet. Its decisions on these issues are almost certain to be of the kind of transcendent importance that makes or breaks not only a Term, but a Court, and even a nation."

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