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Citizens, Beware… Lawyers For Padilla Claim Feds Are Stalling… The Right To Counsel


Citizens, Beware

January 10, 2003
Copyright © 2003 The Boston Globe. All rights reserved.

THE US COURT of Appeals in Richmond, Va., took a slice out of the Bill of Rights Wednesday when it ruled that US citizens accused of being enemy combatants can be denied the basic right to challenge that designation and can be locked up indefinitely.

In its ruling the court even denied a lawyer hired by Yaser Esam Hamdi's father the right to inspect the government's evidence that Hamdi is the Taliban fighter the military claims him to be.

That makes clear just how thoroughly the Appeals Court has eviscerated the due process rights that the Constitution grants to US citizens. Hamdi was born in Louisiana to Saudi parents. The Bush administration's war against terrorism is open-ended in duration, so Hamdi could remain incommunicado in a Virginia brig for years without the right even to challenge the two-page Pentagon statement that identifies him as an enemy combatant.

In the administration's view, a citizen held as an enemy combatant can be detained without charges or judicial review and has no right to bail or a lawyer. In this status, Hamdi has fewer rights than ordinary criminals or foreigners facing the military tribunals the administration has proposed to use. Both Richard Reid, the shoe bomber, and Zacarias Moussaoui, whom authorities have called the "20th hijacker," enjoy more rights than Hamdi, and neither is a US citizen.

The decision Wednesday overturned a ruling last August by US District Judge Robert Doumar of Virginia, who was appointed by Ronald Reagan. Doumar, sensibly, had sought more detailed information from the government on why it calls Hamdi an enemy combatant. The judge wrote that he needed to see the statements Hamdi made to his interrogators, the "screening material" used by the military to determine his status, and the names and addresses of those in the military who made the determination.

Both the executive branch and the judiciary are still feeling their way in the strange new world of an undeclared war that is being fought all over the globe, from the Philippines to Hamburg to Chicago. So far three US citizens - Hamdi, John Walker Lindh, and Jose Padilla, the so-called "dirty bomb" suspect - have been accused of siding with the enemy. More are likely to be, but not so many that there is any logistical reason, as the Appeals Court suggested, to let the military detain Americans indefinitely on its say-so without judicial review.

Many civil rights organizations, a coalition of law professors, and a task force of the American Bar Association have all said citizens should not be stripped of their constitutional rights as Hamdi has been. When his case comes to the US Supreme Court, it should reach the same conclusion.

Lawyers For Padilla Claim Feds Are Stalling

Mark Hamblett, New York Law Journal

January 14, 2003
Copyright © 2003 New York Law Journal. All rights reserved.

Lawyers for an American citizen detained as an enemy combatant by order of President Bush accused the government Monday of intentionally delaying their first meeting with their client.

Responding to a government motion that asks Chief Judge Michael Mukasey of the Southern District of New York to reconsider his decision allowing enemy combatant Jose Padilla to meet with them, attorneys Donna R. Newman and Andrew G. Patel said the motion was "nothing more than foot dragging."

Mukasey, in a groundbreaking ruling on Dec. 4, said the executive branch must present "some evidence" supporting the president's decision to designate Padilla an enemy combatant. The judge also ruled that some access to counsel should be provided Padilla to help the court consider his petition for a writ of habeas corpus.

Padilla was designated a combatant, administration officials said, because he had returned to the United States to pursue a plot to obtain and detonate a radioactive or "dirty" bomb. He had been in custody as a material witness for three weeks following his arrest at O'Hare International Airport in Chicago.

In the Dec. 4 ruling, Mukasey instructed two sides to submit papers -- and attempt to come to some agreement -- on the manner in which the lawyers could meet with their client. A conference with the judge is set for today. On Jan. 9, the government submitted its motion for reconsideration, reasserting that there should be no meeting between Padilla and his lawyers, but that move is not expected to postpone the conference.

The central argument in the government's motion was that allowing Padilla access to counsel would compromise his interrogation.

Deputy Solicitor General Paul D. Clement and Southern District U.S. Attorney James B. Comey told the judge in their motion that the briefing leading up to the judge's Dec. 4 ruling "failed sufficiently to focus on the grave damage to national security interests that would result from interference with the interrogation of Padilla."


The government included a declaration from Vice Admiral Lowell E. Jacoby, director of the Defense Intelligence Agency, who said allowing lawyers to see Padilla would compromise intelligence gathering. Clement and Comey argue that Padilla's exposure to defense lawyers would "threaten permanently to undermine the military's efforts to develop a relationship of trust and dependency that is essential to effective interrogation."

And building that relationship takes time, they argue, particularly because Padilla spent time in prison in the United States before he traveled abroad and made contact with Osama bin Laden's terror organization, al-Qaida.

"In view of his substantial experience with the United States criminal justice system and his representation by counsel when detained as a material witness, Padilla may be more likely to resist interrogation -- and more likely to expect counsel can and will assist -- than most detained enemy combatants," they state.

But in their reply Monday, Newman and Patel said the Jacoby Declaration is "more of the same."

"It consists of nothing more than conjecture as to what Padilla is thinking and how he might react to seeing counsel," they state.

Newman and Patel also argue that the government has failed to bring new information to light that would warrant reconsideration by Judge Mukasey.

"Few issues have been as thoroughly briefed as Padilla's right/access to counsel," they state, adding that the government's motion is "impermissible, repetitive and an apparent effort to unreasonably delay counsel's meeting with Padilla."


Not surprisingly, the government in its motion to reconsider, and Padilla's lawyers in their response, take opposing views on the significance of the 4th U.S. Circuit Court of Appeals' recent decision in Hamdi v. Rumsfeld, the case of another U.S. citizen designated an enemy combatant by the president.

On Jan. 8, the 4th Circuit found that a declaration from the executive branch giving reasons for the enemy combatant designation was sufficient. The government states in its Padilla motion that the 4th Circuit "reached that conclusion without affording Hamdi access to counsel to address the factual assertions in the declaration."

But for Newman and Patel, the government is misapprehending the significance of the Hamdi ruling. The government's argument, they say, "presupposes the President's findings must be accepted at face value without providing Padilla with an opportunity to refute factual contentions." This argument, Newman and Patel claim, ignores habeas corpus case law and statutes that "require a factual response," and "likewise ignores Padilla's due process rights to effectively appear in court."

The 4th Circuit's decision in Hamdi, Newman and Patel assert, "is of little value" to the government in Padilla. They quote the 4th Circuit in Hamdi as saying, "We have no occasion, for example, to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding."

The government's motion for reconsideration was signed by Comey and Clement, as well as Assistants to the Solicitor General David B. Salmons and Sri Srinivasan, Justice Department Attorney Jonathan L. Marcus, and Assistant U.S. Attorney Eric B. Bruce.

The Right To Counsel


January 24, 2003
Copyright © 2003 The New York Times. All rights reserved.

A federal judge in New York attacked the Bush administration recently for defying his order to allow Jose Padilla, who is accused of being part of a plot to set off a "dirty bomb," to meet with a lawyer. In case after case, the administration has taken the position that if it accuses someone of being a terrorist, he can be prevented from communicating with a lawyer. The right to counsel is a cornerstone of the American legal system, and the administration must realize that it has not been repealed by the war on terrorism.

Mr. Padilla, an American citizen arrested on American soil, was labeled an "enemy combatant" and has been held in a Navy brig in South Carolina since June. Judge Michael Mukasey, of Federal District Court in Manhattan, ruled last month that Mr. Padilla should be allowed to meet with his lawyers. But the administration insists that Mr. Padilla is a "critical intelligence resource," and argues that its interrogation would be compromised if lawyers were allowed to speak with him.

Mr. Padilla is not the only terrorism suspect being deprived of a lawyer. Yasser Esam Hamdi, the other American citizen who has been designated an enemy combatant, is similarly being held in a military brig without access to counsel. The administration deprived suspects of lawyers on a far greater scale during the roundups of suspected terrorists in the wake of Sept. 11, when hundreds of detainees were held in secret and denied access to lawyers and family members.

The administration is treating the right to counsel in these cases as an inconvenience and possible impediment to investigators. But under our system of law, all defendants, even alleged terrorists, are innocent until proven guilty. Without access to a lawyer, people thrown in prison on terrorism charges cannot protest their innocence, assert their constitutional right to a speedy trial or otherwise challenge their confinement.

It is always easier for law enforcement if defendants do not know their rights. But the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." As the Supreme Court explained in the landmark case of Gideon v. Wainwright in 1963, the "noble ideal" of a fair trial cannot be achieved if a defendant has to face his accusers without access to a lawyer.

The Bush administration should let Mr. Padilla meet with his lawyer, and it should start respecting the right to counsel guaranteed by the Constitution.

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